MINING RIGHTS
In the Western States and
Territories
LODE AND PLACER CLAIMS
Possessory and Patented
STATUTES, DECISIONS, FORMS AND LAND
OFFICE PROCEDURE
For Prospectors^ Attorneys^ Surveyors
and Mining Companies
Bjf R. S. MORRISONxrfrt^ EMILIO D. DE SOTO
// Of the Colorado Bar
ELEVENTH EDITION, REVISED AND ENLARGED
DENVER, COLOR.* no
COPYRIGHT, 1903.
BY
R. S. MORRISON AND EM1LIO D. DE SOTO
Bancroft Library
MINING RIGHTS.
DISTEICT RULES.
Origin of the Mining Districts and District Rules.
In the earliest mining camps, before the admis-
sion of California as a State, and before the organ-
ization of any of the Western Territories, a system of
miners' laws had been established, the outlines of
which have been the basis of all subsequent legisla-
tion.
The country was divided into "Mining Districts,"
some less than a mile square and others quite ex-
tensive, which have become permanent geographical
divisions, and take the place of townships and sec-
tions in describing the situation of real estate of all
kinds in the mining counties.
Each Adopted a Separate Code of Regulations,
and elected a Recorder, who kept a record of claims
and transfers; and usually a judge and other officers
who carried out the mining rules and also enforced
the decisions of the jury of, miners or the miners'
meeting.
CONTRACTIONS.
R. 8. — Revised Statutes .of the United States.
A. C. — Act of Congress.
L. D. — Land Decisions of the Interior Department.
M. A. 8. — Mills' Annotated Statutes of Colorado.
Rule or L. O. Rey. — Land Office Regulations.
If. R. — Morrison's Mining Reports (Vols. 1-16 printed.
Vols. 17-20 in press). The original volume frotn which the
reprint was made in the Mining Reports is given in the
TABLE OF CASES CITED.
4 DISTRICT RUI.KS.
The written regulations usually first defined the
name and boundaries of the district; second, the
number and kind of officers to be elected from time to
time; and then proceeded to designate what number
of feet should constitute a claim in that district, the
amount of surface allowed, the amount of work re-
quired to hold a claim, etc., and sometimes extended
further, to the mode in which mining controversies
and other difficulties should be settled.
These district regulations have been with general
uniformity recognized by the Territorial and subse-
quent State Legislatures and are specifically men-
tioned in and approved by the Mining Acts of Con-
gress beginning with the first Act on the subject in
1866. When not in conflict with statutory law, espe-
cially in cases arising out of the early discoveries,
they may still be regarded as in force and occasion-
ally important. They are supposed to be filed at
present in the office of the County Recorder, and a
search among them is sometimes necessary to the
lawyer, and always refreshing to those who are curi-
ous in regard to pioneer customs.
In instances the district constituted a municipal
subdivision so distinct that the custody of the rec-
ords was never transferred to the County Recorder,
and the laws as well as records of claims were kept
in his office alone.
Scope of Their Legislation.
This system of the miners throughout the rest of
the Pacific slope and in the mountain States gen-
erally, was moulded upon customs already established
in California, and many of the California mining
rules were identical with provisions of the Mexican
law.
The subdivision of a vein or deposit into claims;
the allowance of an "additional claim" to the discov-
erer; the staking of claims; the requirement of a
discovery shaft; forfeiture for neglect to work, and
DISTRICT RULE'S. 5
various other prominent features are found to be set
forth at large in the Spanish code.
But, in almost every State their day, practically,
has ended and given place to uniform legislation;
and, notwithstanding their recognition in Acts of
Congress, they seem to be always made subject to
State or Territorial laws, and void when in opposi-
tion thereto.
From the defects of these original regulations,
and the want of an exact and uniform mining code,
sprang many points of litigation, for which the min-
ers had only themselves to blame. In some districts
lawyers were, by these laws, forbidden to reside or
practice.
Instances of Their Form and Contents.
The rules of the various districts being more or
less uniform in their mode of expression, and in the
matters regulated by them, we give a citation of rules
from sundry districts from which some idea of their
scope and intention may be formed:
Boundaries.
This district shall be defined and bounded as follows :
Commencing at the head of the canyon on the Las Animas
River at the lower end of what is called and known as
Baker's Park, and thence running east to the summit of
the main dividing range, and then following said range
around so as to include all the waters of said river, to the
place of beginning. — Art. 2, Las Animas District.
Size of Claims.
All claims made on lodes by discovery shall be 200
feet long and 50 feet wide ; all pre-emption claims 100 feet
long and 50 feet wide ; all discovery claims on patch dig-
gings shall be 100 feet square ; pre-emption claims 100
feet square ; all discovery claims on gulch diggings shall be
100 feet long and from bank to bank ; pre-emption claims
shall be the same ; all water claims and steam-mill sites
shall be 800 feet long up and down the stream, and 150
feet wide ; all claims shall be taken by numbers, commenc-
ing at the discovery and running each way. — Art. 8. Grand
Island District.
Value of Labor.
There shall be allowed for a day's labor on all lodes,
the following prices: For working in loose rock and earth,
6 DISTRICT RULES.
twelve dollars per day ; for hard rock, such as will require
powder and drills, sixteen dollars per day. — Resolution 3, Las
Animas District.
Lode Notice.
That all notices on lodes be written in plain English
and posted in some conspicuous place on the lode. — Resolu-
tion 8, Las Animas District.
Sheriff.
It shall be the duty of the Sheriff to serve all papers
issued by the President, and to be a General Peace Officer. —
Art. 6. Coral District.
Water.
In all gulches or ravines where water may be scarce,
the oldest claimants shall have preference and priority of
right to water. — Art 5, Downieville District.
Fictitious Locators.
Be it further enacted, that no claims shall be re-
garded as valid, pre-empted or recorded, in fictitious or
false names, nor by persons not residents of the Territory,
except the same are made in good faith. — Sec. 13, Lincoln
District.
Forfeiture.
Any person absenting himself from this mining region
twelve months, shall forfeit his claims, except when they
are represented by an agent. — Sec. Vt, Iowa District:
Old Debts.
No suits shall be brought in the miners' court for
indebtedness contracted in any other State or Territory,
except by consent of all the parties interested. — Sec. 9} Ban-
ner District.
Duties of Recorder.
It shall be the duty of the Recorder safely to keep
the records of the district, and to record all papers upon
the payment of his fees. To act as secretary at all pub-
lic meetings of the district, and by virtue of his office
as Treasurer, to keep all moneys of the district paid to
him, subject to the draft of the President ; also, to keep
all vouchers, so that at any time he may be able, when
called upon, to exhibit the financial condition of the dis-
trict.— Chap. 5, Sec. 1, Griffith District.
Murder.
Any person guilty of willful murder, upon convic-
tion thereof, shall be hung by the neck until he is dead. —
<11i a p. 16, Sec. 1, Id.
DISTRICT RULE'S. 7
Larceny.
If any person or persons shall be guilty of stealing
any property whatever in this district, and he or they be
found guilty by a majority of a jury of twelve, chosen to
try his or their guilt or innocence, he or they shall be sen-
tenced to immediately restore the property stolen, and pay
to the party injured all damages sustained, directly or in-
directly, in consequence of the theft ; and in case the guilty
party shall not so restore and make good all the damages as
aforesaid, the injured 'party may take sufficient property of
the defendant found in this district, to satisfy all dam-
age, and dispose of it in any way he may deem proper ; and
the defendant shall also be banished forever from this dis-
trict, and he failing to leave immediately on notice, shall
receive not less than five nor more than twenty-nine lashes,
and in case the value of the property stolen be over one
hundred dollars, he shall be hanged by the neck until he
is dead ; the injured party may proceed to retake his prop-
erty and remunerate himself for damage sustained as above.
— Art. 9, Lower Union District.
Attempt to Regulate Annual Labor.
Such regulations as the foregoing Resolution 3,
of Las Animas District, are manifestly void. The
United States law requires a certain amount in value
of labor or improvements, and this value can not be
lessened by an arbitrary scale. They might with as
much reason have fixed at once a single foot of sink-
ing as the full equivalent of the $100 required by law.
The Act fixes both the amount and the period for
its performance. A district rule requiring labor
every sixty days is void. — Original Co. v. Winthrop
Co. 60 Cal. 631. But a careful reading of R. S., Sec.
2324, would seem to allow a district rule to increase
the amount, though it can not lessen it. — Sisson v.
Sommers, 55 Pac. 829; Northmore v. Simmons, 97
Fed. 386.
New Districts.
Even before the passage of the Mining Act of
1872 in many localities the district organizations had
gone into disuse and the tendency since the Act has
been towards their obliteration. Where new districts
have been formed their action has usually been lim-
ited to giving a name to and fixing the boundaries of
DISTRICT RULKS.
the camp or district, and any attempt to revive old
or enact new district rules in any State or Territory
which has any pretense of a mining code would only
tend to confusion.
Although the organization of the old districts has
ceased to he maintained, their names and boundaries
still exist to be used in location certificates and deeds
as descriptive of the locality.
Unorganized Districts.
A mining title may be proved without either
district organization or proof of district rules. —
Golden Fleece Co. v. Cable Go. 1 M. R. 120.
Where land office or other forms contain a blank
for the name of the mining district, and no district
has ever been formed, it is usual to fill such blank
with the word "Unorganized." And there is no doubt
that a mining district may exist to the extent of giv-
ing a name to a locality and to that extent only, and
such name, when adopted by common consent, is as
valid as if adopted at a district meeting.
The term mining district has a well known mean-
ing, while the term mineral district is only a vague
and indefinite generalization. — U. 8. v. Smith, 11
Fed. 487.
New Districts in Alaska.
The Alaska Act, 31 St. L. 328 (post ALASKA;, rec-
ognizes old district organizations, provides for new
ones and contemplates the passage of district rules.
Upon the organization of a district the minutes
of first meeting should show that it was called
by public notice and attended by a majority of
the miners either personally or by representation;
should define boundaries; elect permanent Chairman
and Recorder; restrict size of placer claims in
crowded diggings, leave lode claims to the full size
allowed by the Act of Congress, and make special
provision for the keeping of permanent and acces-
sible records.
DISTRICT RULE'S. 9
Judicial Decisions as to District Rules.
Where in ejectment for a mining claim the plain-
tiff has described the same as located under district
rules, he may recover without proof of the existence
of such rules by evidence of his prior possession and
the entry of defendant; but if his prima facie case
on possession is negatived by any title proved by de-
fendant he must then show the existence of the dis-
trict rules and his compliance therewith before he
can introduce his location or record made under such
rules. — Sears v. Taylor, 5 M. R. 318.
Courts will not inquire into the regularity of the
mode by which district rules have been enacted, ex-
cept upon allegation of fraud, or other like cause. —
Gore v. McBrayer, 1 M. R. 645.
Where the evidence renders it doubtful whether
the written laws of a district are in force, both the
written laws and parol proof of the mining customs
may be offered in evidence. — Golman v. Clements, 5
M. R, 247.
District Records.
A district record kept in a pocket diary is no
record. — Fuller v. Harris, 29 Fed. 814. A district
recorder can not appoint a deputy. — Van Buren v.
McKinley, 66 Pac. 936.
Once proved to exist are presumed to continue. —
Riborado v. Quang Pang M. Go. 6 Pac. 125.
• The land office, in patent applications, has the
power to decide what rules are in force. — Parley's
Park Co. v. Kerr, 130 U. S. 256.
A mining regulation can not restrict the number
of claims which a party may hold by purchase. —
Prosser v. Parks, 4 M. R. 452.
A district rule can not limit the size of a claim
duly located before such rule was adopted. — Table
Mt. Co. v. Stranahan, 9 M. R. 465.
A right to hold a claim may be forfeited by fail-
ure to comply with the district rules. — St. John v.
Kidd, 4 M. R. 454- But not unless the rule itself so
10 U. S. LICENSE.
expressly provides. — Bell v. Red Rock Co. 1 M. R. 45;
Emerson v. McWhirter, 65 Pac. 1036.
A valid district rule may exist and be proved,
although not found among the other written rules of
the district. — Harvey v. Ryan, 4 M. R. JflO.
A custom, reasonable . in itself, and generally
observed, will prevail against a written mining regu-
lation which has fallen into disuse.—- Id.
The existence of a district mining law is a ques-
tion of fact for the jury. — Id.
Effect of Mining Codes.
Arizona, Colorado, Idaho, Montana, Nevada, New
Mexico, North and South Dakota, Oregon, Washing-
ton and Wyoming, have adopted more or less com-
plete mining codes. In California, Utah and Alaska,
much more is left to the control of the district or-
ganizations, but the inclination in all is toward stat-
utory regulations and on whatever point the statute
is made to cover, the authority of the district rules
ceases, except as to rights already vested. The ten-
dency is thus to their ultimate extinction. See STAT-
UTORY REQUIREMENTS and RECORD.
CONGRESSIONAL RECOGNITION OF MINERS'
RIGHTS.
License to Appropriate the Public Domain.
II. S. Sec. 910. — No possessory action between persons,
in any court of the United States, for the recovery of
any mining title, or for damages to any such title, shall
be affected by the fact that the paramount title to the
land in which such mines lie is in the United States ; but
each case shall be adjudged by the law of possession. — Sec.
9, A. C. Feb. Vt, 1865.
License Under Congressional Act of 1866.
Sec. 1. — The mineral lands of the public domain,
both surveyed and unsurveyed, are hereby declared to be
free and open to exploration and occupation by all citizens
U. S. LICENSE. 11
of the United States, and those who have declared their
Intention to become citizens, subject to such regulations as
may be prescribed by law, and subject also to the local cus-
toms or rules of miners in the several mining districts, so
far as the same may not be in conflict with the laws of the
United States. — Sec. 1, A. C. July 26, 1866. Repealed May
10, 1872.
License Under Present Congressional Law.
It. S. Sec. 2319. — All valuable mineral deposits In
lands belonging to the United States, bath surveyed and un-
surveyed, are hereby declared to be free and open to explor-
ation and purchase, and the lands in which they are found
to occupation and purchase, by citizens of the United States
and those who have declared their intention to become such,
under regulations prescribed by law, and according to the
local customs or rules of miners in the several mining dis-
tricts, so far as the same are applicable and not inconsist-
ent with the laws of the United States. — Sec. 1, A. C. May
10, 1872.
Section 910 contains the first Congressional rec-
ognition of the fact that the mineral lands of the
United States were being appropriated by its citizens.
From the time, however, of the discovery of gold
in California, the government had tacitly recognized
the occupation of its mining lands as such, and with-
held them from survey and pre-emption.
Judicial Recognition.
The judiciary of California and all the States
and Territories on the Pacific slope had recognized
the "Miners' Title" as property entitled to protec-
tion, and they were followed by the Supreme Court
of the United States to the same effect. — Sparrow v.
Strong, 2 M. R. 320; Forbes v. Gracey, 14 M. R. 183.
Consecutive Acts of '66, '70 and 72.
In 1866 the first Act was passed looking to the
absolute disposition of mineral veins. In 1870 a sup-
plemental act was passed embracing placers. In
1872 these acts were revised and the Act of Congress
of May 10 of that year, found in Chapter 6, Title 32
of the Revised Statutes of the United States, is, with
slight change, the Congressional law now in force.
12 POSSESSORY TITLE.
LEGAL STATUS OF POSSESSOEY CLAIMS.
The National Government the Source of Title.
By proper expressions in the Organic Act of each
Territory or the Enabling Act of each State, the own-
ership of the United States in the public domain is
declared as fundamental law. The attempt once
made in California to assert a State ownership in
mines, Hicks v. Bell, 3 Cal. 219, has been long ago
abandoned. — Moore v. Smaw, 12 M. R. 429. The title
to all lands in the French and Mexican cessions, is
in the first instance, in the United States of America,
excepting grants made by the old government prior
to the treaties. These cessions include all land west
of the Mississippi River except the old Territory of
Oregon.
The fee simple thus remaining in the govern-
ment, all citizens, or persons who have declared their
intention to become citizens, are allowed to enter
upon the unappropriated public domain and acquire
title to mineral lands by complying with certain regu-
lations intended to preserve the peace and protect
the first occupant.
Before the passage of Acts of Congress to this
effect, the assertion of claims to mines by discoverers
had been recognized by district rules, local statutes
and decisions of courts. But ever since 1866 the mat-
ter has been regulated by specific Acts of Congress,
supplemented by district rules and local legislation
concerning the details of occupation and the manner
of disclosing and perfecting title.
Whether a Vested Estate.
It would not seem under previous decisions (Yo-
semite Case, 15 Wall. 77), that an unpatented mining
claim was a vested estate. And the clause in the Act
POSSESSORY TITLE. 13
of 1872 requiring annual labor on claims taken up
under .the Act of 1866 was a statutory declaration
that it did not constitute a vested estate. But later
rulings, made since such Mining Titles have been fre-
quently before the National Supreme Court and the
number and importance of such inchoate estates have
been recognized, treat them technically as well as in
conscience, as estates vested in the occupant. Such
may now be accepted as the necessary conclusion
from the decisions to be cited; and the Yosemite case
is relegated to that class of precedents which are
silently departed from without being in terms over-
ruled.— Gwillim v. Donnellan, 15 M. R. 482; Mc-
Feters v. Pier son, 15 Colo. 204.
The Miner Holds a Qualified Title dependent
upon possession and maintained by compliance with
local directions. He is not compelled to advance to
patent nor to pay for the use of the land, but his
holding is of the same legal class as a homestead
or pre-emption and is in anticipation of an ultimate
entry and patent. His title is not absolute in a tech-
nical sense, nor secure in a practical sense, until
he gets the fee simple title by such proceedings.
Abandonment.
Such an estate, dependent upon possession, is
conversely one which may be lost by abandonment.
— Merritt v. Judd, 6 M. R. 62; Mallett v. Uncle Sam
Co. 1 M. R. 18.
Is a Freehold.
That is to say, an estate which passes to "the
heir. — Harris v. Equator Co. 12 M. R. 178; Merritt
v. Judd, 6 M. R. 62; McFeters v. Pier son, 15 Colo.
201; Keeler v. Trueman, Id. 143.
Is Real Estate.
The miner's claim or title is real estate as dis-
tinguished from chattel or personal property and Is
conveyed, sued for, descends, is devisable and is
treated in other respects as the real property of the
14 POSSESSORY TITLE.
occupant, subject only to the paramount title of the
United States. — Roseville Co. v. Iowa Gulch Co. 16
M. R. 93; Butte Co. v. Frank, 65 Pac. 1. But in
Oregon and Washington they have been held to be
personal property. Herron v. Eagle Co. 61 Pac.
417 ; Phoenix Co. v. Scott, 54 Pac. 777.
The Distinctions Between Mining Claims and
Other Classes of Realty are substantially those
arising out of the following incidents:
1. The title being first acquired by possession, it
may be lost by acts amounting to a discontinuance
of possession; that is by abandonment.
2. The title is conditional upon a compliance
with district rules, if any exist.
3. The formula of notice and recording, and the
method of initiating title are subject to regulation
by the State or Territory, in details not covered by
the Acts of Congress.
4. Annual labor upon each claim is required by
Act of Congress as a condition upon the nonper-
formance of which the same consequences result as
in the case of a technical abandonment; that is, the
claim becomes open to the entry of the next occupant.
5. Special modes of assessment and collection
of taxes are or have been attempted; but distinctions
of this sort have generally been found impractical.
6. There are statutes to prevent forcible dispos-
session of claimants, to allow of underground sur-
veys and inspection and to regulate drainage.
7. The mode of perfecting patent in the U. S.
Land Office is wholly different from that regulating
pre-emption or homestead entries upon agricultural
lands.
SCHOOL CLAIMS'— SOLDIERS' CLAIMS. 15
SCHOOL CLAIMS.
Fully one-half of all the sections of the old Colo-
rado Statutes on the subject of mines, was taken up
by a persistent attempt to force a "School Claim" on
each location. The whole effort was in violation of
the Organic Act, and has been held absolutely null
and void as well by the courts as by the land office,
and repudiated by the miners as an attempt to put
the whole cost of schools on a class of men who, as
a rule, were not persons with families.
By Act of 1862, claim No. 3, east or west, was to
be set apart for schools; by Act of 1866, one side
claim on each end of the discovery claim of 1,400 feet
was to be recorded — 100 feet for schools and 100 feet
for disabled miners.
SOLDIERS' CLAIMS.
By Territorial Acts passed in instances during
the civil war, claims belonging to soldiers were pro-
tected from forfeiture during enlistment and for a
reasonable time thereafter; they were also allowed
to locate and record claims by proxy; and their titles
were protected from sale on execution during their
absence.
During the Spanish war Congress passed the fol-
lowing Act relieving volunteers from performing
assessment work during their term of service. It did
not relieve their co-owners from doing their proper
proportion of work on the same claim.
16 SOLDIERS' CLAIMS.
An Act to relieve owners of mining claims who enlist
in the military or naval service of the United States for
duty in the war with Spain from performing assessment
work during such term of service :
No Annual Labor Required.
That the provisions of section twenty-three hundred
and twenty-four of the Revised Statutes of the United States,
which require that on each claim located after the tenth
day of May, eighteen hundred and seventy-two, and until pat-
ent has been issued therefor, not less than one hundred dol-
lars' worth of labor shall be performed or improvements
made during each year, shall not apply to claims or parts
of- claims owned by persons who may enlist in the volun-
teer army or navy of the United States for service in a war
between this country and Spain, so that no mining claim
or any part thereof owned by such person which has been
regularly located and recorded shall be subject to forfeiture
for nonperformance of the annual assessments until six
months after such owner is mustered out of the service,
or, if he should not survive the war, then six months af-
ter his death in the service.
Certificate to Be Filed.
Sec. 2. That those desiring to take advantage of this
Act shall file, or cause to be filed, a notice in the clerk's
office where the location certificate of said mine is recorded
before the expiration of the assessment year, giving notice
of his enlistment and of his desire to hold said claim under
this ,Act.
Co-Owners.
Sec. 3. That if any such enlisted soldier or sailor has a
coowner or coowners in any mining claim, and who are not
in the Army or Navy, and such coowner or coowners fail to
do such a proportion of one hundred dollars' worth of work
per annum as the interest of such nonenlisted person or
persons bears to the whole claim, then such interest shall be
open to relocation by any other qualified person or persons
by their doing the necessary work thereon and filing an
affidavit of labor showing the forfeiture and that the re-
locators had done the annual work required of such non-
enlisted persons and succeeded them in right under this Act,
which work may be done at any time after the expiration
of the assessment year and before the former owners resume
work thereon. The work and affidavit aforesaid shall op-
erate as a transfer of said forfeited interest from the for-
mer owners to said relocators. — Approved July 2} 1898, SO
St. L. 651.
LENGTH OF OLD LODE CLAIMS'. 17
LENGTH OF LODE CLAIM LOCATED BEFOEE
MAY 10, 1872.
3000 Foot Act of Congress of 1866.
Sec. 4 * * * No location hereafter made shall
exceed two hundred feet in length along the vein for each
locator, with an additional claim for discovery to the dis-
coverer of the lode, with the right to follow such vein to
any depth, with all its dips, variations, and angles, together
with a reasonable quantity of surface for the convenient
working of the same as fixed by local rules. And provided
further, That no person may make more than one location
on the same lode, and not more than three thousand feet
shall be taken in any one claim by anj association of per-
sons.— A. C. July 26; 1866. Repealed Hay 10, 1872.
Before the Act of Congress of 1866 the length
of lode claims was regulated either by district rules
or by State or Territorial legislation. It was by
no means uniform. Short lengths of 100 or 200 feet,
sometimes as low as fifty feet or less, were the limi-
tations under the older district rules. In later years
the tendency was to allow longer claims. In Colo-
rado the statute fixed the length of a claim in 1861
at 100 feet. In 1866 at 1,400 feet. The Act of Con-
gress of 1866 allowed 400 feet to the discoverer and
a claim of 200 feet to each associate locator, not ex-
ceeding 3,000 feet on the lode under one location.
Associates and Side Claims.
It is impossible to understand the limitations on
the size of claims without considering a certain cus-
tom which originated in the earliest mining camps of
California and became a general practice over the
western slope. With slight local modifications this
custom was for the discoverer to record a notice that
he claimed 50, 100 or 200 feet, as the case might be,
on a certain lode. On the same paper, or by a sepa-
rate paper signed later, other parties, real or nominal
18 LENGTH OF OLD LODE CLAIMS.
associates of the discoverer, would give notice of claim
to No. 1 East, No. 1 West, etc., on the same lode.
Not only would the associates of the discoverer make
such records, but often third parties, without even
going on the ground, would file on these side claims —
in instances to the extent of several thousand feet
on each side from the discovery claim.
Joint Records.
In other districts the discoverer and his asso-
ciates would file on the discovery claim, No. 1 East,
No. 1 West, No. 2 West, etc., indefinitely by a joint
location certificate, not attempting to segregate the
feet claimed by one from the feet claimed by the
other.
Record Without Location Work.
These side claims, whether taken separately or
as one joint location, were supposed to be at least
staked off on the ground, but no discovery hole was
required, and, in fact, in most cases, only the paper
record was made and the claims seldom pursued fur-
ther, unless developments on the discovery claim
seemed to indicate that the side claims might be of
value. Such was not the original intention of the
miners, but the custom degenerated to this, and the
records of hundreds of such claims remain, whose
owners never did any work upon, nor ever knew the
exact situation of their claims.
Nominal Associates Conveying to Discoverer.
This privilege to locate side claims was soon
taken advantage of by the discoverer, who procured
nominal parties to record, and immediately after
recording to convey their claims to him, and as soon
as the Act of Congress, 1866, was passed, such be-
came the universal practice, the custom as it already
existed being altered only in this: That the claims
were no longer numbered, but were taken together
as a joint location by a supposed association of four-
teen persons, taking fifteen claims of 200 feet each,
LENGTH OF OLD LODE CLAIMS. 19
or 3,000 feet in all — the discoverer being allowed one
additional claim. Further, after the passage of such
Act, the staking of the lode into its several claims
was abandoned altogether. Before the Act each lo-
cator usually recorded one specific claim, in which the
other locators had no interest, nor he in theirs, but
after the Act, the record almost always showed a
joint location of undivided claims.
Validity of Such Nominal Records.
It is more than doubtful whether at any time,
as against an adverse ~bona fide claim, such nominal
side claims were by the record alone, of any validity,
unless actually possessed and defined upon the ground
in some manner; Cons. Rep. Co. v. Lebanon Co. /-">
M. R. Jf90 ; Becker v. Pugli, Id. 30 Ji; Hess v. Winder,
12 M. K. 211'; but the practice of the Land Office is
to patent such claims without inquiry, if sufficient de-
velopment for patent has been done on any one of
them, or on the discovery.
Length of Lode Claim at Various Dates in Colorado.
1. Prior to Nov. 7, 1861, the length of a lode
claim was fixed by district rules.
2. From Nov. 7, 1861, to March 11, 1864, the
length of a claim was 100 feet, but an indefinite
number of claims could be based on a single dis-
covery.
3. From March 11, 1864, to Feb. 9, 1866, 100
feet was the length of a claim, and sixteen claims
of that length could be based on a single discovery.
4. From Feb. 9, 1866, to July 26, 1866, 1,400 feet
was the length of a claim and the limit of a location.
5. From July 26, 1866, to Feb. 11, 1870, 200 feet
was the length of a claim and 1,400 feet could be
taken under one location.
6. From Feb. 11, 1870, to May 10, 1872, 200 feet
was the length of a claim and 3,000 feet could be
taken under one location.
7. Since May 10, 1872, 1,500 feet is the length of
a claim.
20 PRESENT LENGTH OF LODE CLAIMS.
LENGTH OF LODE CLAIM SINCE MAY 10, 1872.
Not to Exceed 1,500 Feet.
R. S. Sec. 2320. — Mining-claims upon veins or lodes
of 'quartz or other rock in place bearing gold, silver, cinna-
bar, lead, tin, copper, or other valuable deposits, heretofore
located, shall be governed as to length along the vein, or
lode by the customs, regulations, and laws in force at the
date of their location. A mining-claim located after the
tenth day of May, eighteen hundred and seventy-two,
whether located by one or more persons, may equal, but
shall not exceed, one thousand five hundred feet in length
along the vein or lode ; but no location of a mining-claim
shall be made until the discovery of the vein or lode within
the limits of the claim located. * * * — Sec. 2, A. C
May 10} 1872.
Colorado State Law to Conform to Above.
. M. A. S. Sec. 3148. — The length of any lode claim
hereafter located may be equal but not exceed fifteen hun-
dred feet along the vein. — Pel). 13, 187J,.
Since May 10, 1872, 1,500 Feet has been the well-
known limit of a lode. This number of feet consti-
tutes one undivided claim, or one lode as the word
is commonly used — that is, so much of a vein as
is covered by one location based upon a single dis-
covery— and in practice so much of one vein as is
known by a single name and covered by a single
record. The length of 1,500 feet 'is the uniform
length wherever the mining acts are in force. It
is doubtful whether a State Legislature could
shorten this length, it being a Congressional limi-
tation. It is the length almost invariably expressed
in the location certificate and is rarely shortened
except where only a fraction of clear ground re-
mains to be taken up.
Length — How Distributed.
This length, by common usage, is taken 750 feet
on each side of center of discovery; but it may be
WIDTH OF OI.D LODE CLAIMS. 21
taken all on one side except enough to include the
discovery shaft itself, or it may be distributed in any
desired proportion from the center of the discovery
shaft.
Location of Excessive Length.
The import of the decisions on this point seems
to be that an inadvertent over-stepping of the legal
length will not avoid the claim; Richmond Co. v.
Rose, 114 U. 8. 516; Burke v. McDonald, 33 Pac. 4<J;
Hanson v. Fletcher, 37 Pac. 480; but that the claim
as to the excess is void; Hauswirth v. Butcher, 4
Mont. 299; Goitres v. Illinois Go. 67 Pac. 666; and
that a gross excess (1,763 instead of 1,500 feet)
made without excuse will defeat the whole location. —
Leggatt v. Stewart, 15 M. R. 358.
An excess staking in length or width does not
invalidate, except as to the excess, when made with-
out fraud (in this case by stepping the lines) and
the mistake has been corrected before the rights of
third parties attached. — Stem-Winder Co. v. Emma
Co. 21 Pac. 1040.
But where the excess was such that the end stakes
could not be found on search within several hundred
feet the location is not valid. — Ledoux v. Forester, 94
Fed. 600.
WIDTH OF LODE CLAIM LOCATED BEFORE
MAY 10, 1872.
Indefinite Under A. C. 1866.
Sec. 4. — No location hereafter made shall exceed two
hundred feet * * * * . * * together with a reasonable
quantity of surface for the convenient working of the same,
as fixed by local rules. — A. C. July 26, 1866. Repealed May
10, 1872.
Colorado 50-Foot Act of 1866.
Sec. 4. — On all mineral lodes or veins of gold-bear-
ing ores, or of silver or other valuable minerals in this Ter-
PRESENT WIDTH OF LODE CLAIMS.
rltory. the owner or owners of all such deposits shall, by
virtue of priority of discovery, be deemed and held to be
the owner or owners of all spurs, off -shoots, dips, angles,
feeders, cross or parallel veins of any character or name
whatsoever, lying and being within the limits of twenty-five
feet in either direction from the center of said first dis-
covered lode or vein. — Pel). 9, 18G6.
The district rules usually allowed a surface
width of fifty feet; sometimes more, often less. The
Act of February 9, 1866, made twenty-five feet on
each side of the center of the vein the width of the
claim by implication only, and yet was generally
construed as restricting width of claims throughout
Colorado; and this was the only mention of the sub-
ject in the Colorado Statutes prior to 1874.
The A. C. 1866, allowed a "reasonable quantity"
of surface, but the Territorial Statute of the same
year was taken as fixing the amount as above stated,
at fifty feet.
In the other States and Territories the width was
almost invariably, as it still is in some of them, fixed
by district regulation alone, without reference to the
subject by the legislature. — Parley's Park Co. v. Kerr,
ISO U. 8. 256.
Prior to the Act of Congress of 1872, the width of
claims had been considered merely as a question of
sufficient surface for convenient working.
WIDTH OF LODE CLAIM SINCE MAY 10, 1872.
Limits Allowed by Present U. S. Law.
R. S. Sec 2320 * * * No claim shall extend mx>re
than three hundred feet on each side of the middle of the
vein at the surface, nor shall any claim be limited by any
mining regulation to less than twenty-five feet on each side
of the middle of the vein at the surface, except where ad-
verse rights existing on the tenth day of May. eighteen
hundred and seventy-two, render such limitation necessary.
The end-lines of each claim shall be parallel to each other. —
8ec. 2. A. C. May 10. 1872.
PRESENT WIDTH OP LODE CLAIMS. 23
Present Width Fixed by Colorado Statute.
M. A. S. Sec. 3149. — The width of lode claims here-
after located in Gilpin, Clear Creek, Boulder and Summit
counties, shall be seventy-five feet on each side of the
center of the vein or crevice ; and in all other counties
the width of the same shall be one hundred and fifty feet
on each side of the center of the vein or crevice : Provided,
That hereafter any county may, at any general election,
determine upon a greater width not exceeding three hundred
feet on each side of tl\& center of the vein or lode, by a
majority of the legal votes cast at said election, and any
county by such vote at such election may determine upon
a less width than above specified. — Feb. 13, 187.'f. In force
June 15, 187.',.
Between May, 1872, and June, 1874.
Between May 10, 1872, when the Congressional
section in regard to width was passed, and June 15,
1874, when the Colorado Act took effect, the width of
all lode claims remained fixed at fifty feet under the
Territorial Act of 1866, printed on page 21.
Colorado, 300 Feet Except in Certain Counties.
The A. C. of 1872, having allowed to the locator
all the veins within the side lines of his claim, gave
at once to the question of width an importance before
unknown. The Legislature having in their power to
choose between the extreme width of 600 feet and the
minimum width of fifty feet, a great difference of
opinion resulted in that State, citizens of the older
mining counties generally contending for a narrow
width, while in the new districts a much greater
width was desired; after great debate it was fixed at
150 feet for Gilpin, Clear Creek, Boulder and Summit
counties, and at 300 feet in all other counties.
No instance is known to the author of any at-
tempt in any county, to change the width by an elec-
tion held under the proviso of M. A. S. Sec. 3149; and
the constitutionality of any such proceeding, if at-
tempted, would admit of very great doubt.
All the Other States and Territories allow the full
limit of 600 feet width, except where the district
rules fix a narrower limit, which they rarely now
24 PRESENT WIDTH OF LODE CLAIMS.
purport to do; and except also North and South
Dakota, which fix the width at 300 feet, allowing
counties to increase or decrease it within the Con-
gressional limit.
Center of Vein, Center of Claim.
It will be observed that the center of the lode is
made the center of this width. If, therefore, a party
attempt to locate more than half the extreme width
on either side of his vein, the location of such excess
is without the authority of law, although the entire
width be within the statutory limit. — Taylor v. Par-
enteau, 23 Colo. 368.
By Statute, in Wyoming, the discovery shaft
must be equi-distant from the side lines of the
claim.
Location of Excessive Width.
The Surveyor-General will not issue an order for
survey for patent upon a location certificate which
claims, in terms, on its face, more than the total
width allowed or with an excess of more than one-
half of the legal width on either side of the center
of the discovery vein, and 'it is doubtful whether any
court would receive such certificate in evidence. Such
mistakes are the work of surveyors who undertake
to put their field notes into the form of a location
certificate in total ignorance of what constitutes a
valid location certificate. This document should be
drawn by a competent attorney.
But there is nothing to prevent a location of one-
half the statutory width on one side the center of the
vein and less than one-half on the other side of such
center line.
Excess by Vein Approaching Side Line.
It is true that it may not be known when the
stakes are set what the course of the lode may be,
and honest errors in this respect may readily be com-
mitted; but the vein being the basis of location, and
it having been decided that when a vein leaves the
side lines of its location, the claim both as to veins
DISCOVERY AND LOCATION— OLD LODE'S.
25
and surface beyond that point is void, it necessarily
follows, where either side line is found at any point
to be more than the legal distance from the center of
the vein, that the location of such excess in width
has not been based upon a vein lying within the stat-
utory limits, and comes within the same reasoning
which renders all that part of the location void in
which no vein is found. — Patterson v. Hitchcock, 5
M. R. 542. But no such fact would vitiate any part
of the claim after patent issued. — Peabody Co. v.
Gold Hill Co. 97 Fed. 657.
The above diagram illustrates the preceding para-
graph. The shaded ground shows an excess of 300
feet from the center of the vein. A valid hostile dis-
covery could be made upon such ground or a loca-
tion made taking it in. The plat shows a claim of 600
feet width. Where the full width is 300 feet, the
excess would begin, of course, at 150 feet "from the
center of the vein."
DISCOVERY AND LOCATION OF LODES
FORE THE ACTS NOW IN FORCE.
BE-
Shaft and Stake Tinder Colorado Act of 1866.
Sec. 2. — All lodes or veins of gold, silver, or other
valuable minerals, which may hereafter be discovered, shall
be marked at the point of discovery by a substantial stake,
I»ost or stone monument, having inscribed thereon the name
26 DISCOVERY AND LOCATION— OLD LODES.
of the discoverer or discoverers, and the name of the lode
or vein, with date of discovery ; and the discoverer or dis-
coverers shall, before recording, excavate thereon a shaft
at least ten feet deep, or deeper, if necessary, to find a well-
defined crevice, or forfeit all right and title he or they may
have acquired by virtue of such discovery. — Feb. 9, 1S6G.
Mode of Location Not Strict.
Prior to 1866 there was no United States law reg-
ulating lode locations. Nor did that law state any
definite formula further than to limit the extreme
width and length. Nor were the requirements of the
State or Territorial Legislatures usually specific.
Either by statute or by district rule a discovery was
always required and a notice at the point of discovery,
and in many districts such a staking as would indi-
cate the extreme points to which the claim extended.
In 1866 by statute in Colorado a location stake and a
ten foot discovery shaft were required. In other
States and Territories even these initial and essen-
tial points were left entirely to district regulations.
In all cases the actual disclosure of the vein, and
not merely the float or indication of the vein, was re-
quired, at least with regard to the discovery claim;
and the stake was required to give the name of the
lode and its locator, with usually the date of dis-
covery and the number of feet in each direction.
Sometimes each separate claim was measured and
staked off.
That some act of location was required, has never
been disputed. But in the absence of district rules,
what would amount to a sufficient location can only
be defined as such acts of appropriation as would
amount to a declaration that the locator had appro-
priated the ground, and be sufficient notice to other
prospectors that he had so appropriated it. — Hess v.
Winder, 12 M. R. 217; English v. Johnson, Id. 203;
Attwood v. Fricot, 2 M. R. 305; Gleeson v. Martin
White Co. 9 M. R. 429; Gonu v. Russell, 12 M. R. 630.
In the case of Cons. Rep. Co. v. Lebanon Co. lo
M. R. .'fiO, it was ruled that the posting of the notice
DISCOVERY AND LOCATION. 27
and the recording of certificate not followed by de-
velopment or representation, would not hold the
claim against a subsequent location. See also Becker
v. Pugh, 15 M. R. 304.
DISCOVERY AND LOCATION UNDER LAWS
NOW IN FORCE.
Discovery Required.
R. S. Sec. 2320. * * * No location of a mining-
claim shall be made until the discovery of the vein or lode
within the limits of the claim located. * * — Sec. 2, A.
C. May 10, 1872.
Staking and Record.
R. S. Sec. 2324. — The miners of each mining-district
may make regulations not in conflict with the laws of the
United States, or with the laws of the State or Territory
in which the district is situated^ governing the location,
manner of recording, amount of work necessary to hold
possession of a mining-claim, subject to the following re-
quirements : The location must be distinctly marked on the
ground so that its boundaries can be readily traced. * * *
— Sec. 5, A. C. May 10, 1872.
Discovery Shaft, Notice and Stakes in Colorado.
M. A. S. Sec. 3152. — Before filing such location certifi-
cate the discoverer shall locate his claim by :
First — Sinking a discovery shaft upon the lode to the
depth of at least ten feet from the lowest part of the rim
of such shaft at the surface, or deeper, if necessary to show
a well defined crevice.
Second — By posting at the point of discovery on the
surface a plain sign or notice, containing the name of the
lode, the name of the locator, and the date of discovery.
Third — By marking the surface boundaries of the claim.
— Feb. 13, 187Jt.
Corner Posts, Center Posts.
M. A. S. Sec. 3153. — Such surface boundaries shall be
marked by six substantial posts hewed or marked on the
side or sides which are in toward the claim, and sunk in
the ground, to-wit : one at each corner and one at the cen-
ter of each side line. Where it is practically impossible
on account of bed rock to sink such posts, they may be
28 DISCOVERY AND LOCATION.
placed in a pile of stones, and where in marking the sur-
face boundaries of a claim any one or more of such posts
shall fall by right upon precipitous ground, where the proper
placing of it is impracticable or dangerous to life or limb,
it shall be legal and valid to place any such post at the
nearest practicable point, suitably marked to designate the
proper place. — Feb. 2, 1876.
Open Cuts and Tunnel Discoveries.
M. A. S. Sec. 3154. — Any open cut, cross-cut or tunnel
which shall cut a lode at the depth of ten feet below the
surface, shall hold such lode, the same as if a discovery
shaft were sunk thereon, or an adit of at least ten feet in
along the lode from the point where the lode may be in
any manner discovered, shall be equivalent to a discovery
shaft. — Feb. 13, 187$.
Time to Sink Discovery.
M. A. S. Sec. 8155. — The discoverer shall have sixty
days from the time of uncovering or disclosing a lode to
sink a discovery shaft thereon. — 7r7.
The Doctrine of Appropriation would have no ap-
plication to mining and water claims on the Pacific
Slope if the lands, before the discovery of minerals,
had passed into the hands of private owners; nor
to the government itself, if the government had
chosen either to treat the miners as trespassers or
to arbitrarily dispose of the lands at public sale.
Instead of adopting any such policy, the United
States for many years tacitly, and since 1866 by pos-
itive enactment, opened the lands to the explorer and
occupant; in other words, the mineral lands were
offered to the first appropriator.
The Acts of Appropriation, as to mineral lands,
are equivalent to such acts as would amount to
occupation in other cases; there must be an in-
tent to possess the claim, such acts of appropria-
tion as are sufficient to carry out this intention,
and finally such acts must have such publicity by
record as to operate as notice to all that the lands
have been actually appropriated.
The appropriation of a mine, the appropriation of
water for mining or irrigating purposes, and the occu-
pation of homestead land are therefore in substance
DISCOVERY AND LOCATION. 29
the same, and differ only so far as the various subject
matters differ, the criterion in each case being the
intent of the occupant to segregate a certain portion
of the public domain to his several use, followed by
acts manifesting such intention with such publicity as
is due to the rights of third parties. — Sparrow v.
Strong, 2 M. R. 320; Gore v. McBrayer, 1 M. R. 6J,5.
The Eight of Appropriation is now regulated by
statute to a greater or less extent in the various
States and Territories, so that the appropriator
must not only occupy the ground, but must segre-
gate his claim and otherwise comply with the law,
which attempts to reduce to detail the above gen-
eral principles.
These statutes fix a time for the process of loca-
tion and record and require certain acts to be done to
constitute a valid location. In all the Western min-
ing States and Territories, except California, Utah
and Alaska, the regulations are quite specific. They
have copied the earlier Colorado Statute more or less
closely. In the excepted States much more is left to
district custom. It is intended that a location made
as in this chapter advised would be valid in any State
or Territory, except where some specific statute calls
for additional requirements: The details of location
in each State and Territory are tabulated on page .5.9.
The formal acts of appropriation are: (1) Dis-
covery. (2) Location. (3) Record.
Discovery the Inception of Title.
The discovery of a lode of itself gives title to
the vein for such length of time as is allowed by law
for the completion of the location and record (Hur-
ley v. Ennis, 12 M. R. 360; Erhardt v. Boaro, 4 M. R.
432; 113 U. 8. 527); and when the location and record
are made, if made in due time, the inception of title
relates back to the date of discovery. (Burke v. Mc-
Donald, 29 Pac. 98.) From this fact a later record
may show an older and better title than a record
made several months earlier; Patterson v. Hitchcock,
30 DISCOVERY AND LOCATION.
.) M. R. .')',>. For this reason it is advisable for the
location certificate to recite the date of discovery as
well as the date of location.
If the statute or district rule does not fix a spe-
cific time for the discoverer to follow up his discovery
the common law allows him a reasonable time to do
each act required.
The fact of discovery must be proved by the
party alleging it as the inception of his possessory
right.— Sands v. Cruikshank, 87 N. W. 589. Where a
location is made without discovery the land remains
public domain until there be a discovery. Tuolumne
Co. v. Maier, 66 Pac. 863.
The Vein Must Be Reached.
The discovery is not complete until the vein it-
self is disclosed. The finding of float or loose quartz
is not sufficient. There is a custom generally re-
spected among miners, when any person has discov-
ered indications of a lode and is diligently following
up these indications, to allow thirty days in which
to uncover the deposit; but, if another, by a shorter
cut, should first actually reach the vein, it would
seem that the first prospector, except as qualified by
the Boaro case cited in the next paragraph, could as-
sert no priority; and such has been the tenor of the
decisions. — Upton v. Larkin, 6 Pac. 66; North N. Co.
v. Orient Co. 9 M. R. 529; Overman Co. v. Corcoran,
1 M. R. 691. In Walsh v. Mueller, J/0 Pac. 292, the
facts which constituted the discovery are stated
and held such clear proof as warranted the reversal
of a finding that there was no discovery.
Prospector's Rights Before Discovery.
If, however, a prospector has discovered float or
other indications of the immediate presence of the
vein and keeps diligently at work, such inchoate dis-
covery has practically been held by the National Su-
preme Court in Erhardt v. Boaro, 15 M. R. 447, equiv-
alent to the discovery of the vein in place. If it does
not go so far as to decide that the prospector could
DISCOVERY AND LOCATION. 31
at once locate upon such indications, it does decide
that he has not only the right to be protected in his
possession while following up such indications, but
that he will be protected to the extent of a full claim
when his location is complete.
Excluding the fact of the intimidation which was
in proof in that case, it is difficult to reconcile the
opinion with the Colorado Statute, which requires a
well denned crevice to be disclosed, and with the lan-
guage of the R. S. Sec. 2320, which prohibits any
location until the discovery of the vein. Whatever
the effect of the decision in giving precedence to
the prospector upon the floe as against the actual
discoverer of the vein itself, it ought at least to be
certain that no such disclosure of indications short
of uncovering the vein in place, would hold as a dis-
covery sufficient to stake and record upon and leave
to the protection of the law, as the miner may do
when his discovery, location and record upon the lode
in £lace are once absolute and complete; but when
accompanied by his actual presence on the ground
with notice posted, the question of prior discovery in
fact in such case remains a question for the jury.
The Discoverer in Law is not necessarily the orig-
inal finder, but any one who, knowing of the exist-
ence of the mineral, takes some step toward an
appropriation of the land which contains it. — Ne-
vada Go. v. Home Co. 98 Fed. 673; Jupiter Co. v.
Bodie Co. 4 M. R. 411. It is assumed, of course,
in such case that the original actual discoverer
failed to perfect his initiatory first right by loca-
tion. The vein may be disclosed in a pit sunk on
it before by a stranger. — Hayes v. Lavagnino. 53
Pac. 1029.
A Location on Float Ore, the discovery opening
not showing the lode in place, has been expressly
held to be invalid. Several tons of such ore had
been extracted, but the vein itself from which it
32 DISCOVERY AND LOCATION.
came had not been defined. — Waterloo Co. v. Doe,
56 Fed. 685.
On the other hand an Idaho decision allowed a
location to stand good made upon "indications of
mineral," the report, however, leaving it very indef-
inite as to what these indications were. — Burke v.
McDonald, 29 Pac. 98.
Discovery After Location.
If a location be made before discovery, but is
followed by a discovery in the discovery shaft, be-
fore any adverse rights intervene, such subsequent
discovery cures the original defect and the claim is
valid.— McGinnis v. Egbert, 15 M. R. 329; Golden
Terra Co. v. Mahler, 4 M. R. 390; Jupiter Co. v. Bodie
Co. 4 M. R. 411; Zollars v. Evans, 4 M. R. 407; North
Noonday Co. v. Orient Co. 9 M. R. 529; Erwin v.
Perego, 93 Fed. 608; Nevada Co. v. Home Co. 98 Fed.
673; Brewster v. Shoemaker, 63 Pac. 309; and the
Land Department has followed these rulings. — £8 L.
D. 526.
But where a location and record were made with
no discovery, a subsequent discovery will not relate
back and cut out an intervening location. — Beals v.
Cone, 62 Pac. 948.
Discovery and Discovery Shaft Distinguished.
The fact of discovery is a fact of itself, to be
totally disconnected from the idea of discovery shaft.
The discovery shaft is a part of the process of loca-
tion, subsequent to discovery. If a lode, for instance,
be discovered in a cross-cut run to operate some other
known vein, or if a prospect hole be dug on the out-
crop of a lode, and no steps are taken to stake and
record such lode, it becomes no more the property of
the owner of the cross-cut, or of the party who dug
the hole, than if he had never happened to strike it,
and although he could have followed up the discovery
by perfecting title, his neglect so to do is equivalent
DISCOVERY AND LOCATION. 33
to abandonment of the inchoate right given by dis-
covery.— Willeford v. Bell, 49 Pac. 6.
The Discovery Need Not Show Pay Ore.
It is sufficient that it disclose such a crevice
as a miner would be willing to further open and fol-
low.— McShane v. Kenkle, 44 Pac. 919; Shreve v. Cop-
per Bell Co. 28 Pac. 31 5; Muldrick v. Brown, 61 Pac.
428.
Comparative Size or Value.
If there is once found a lode such as is conceded
to be one upon which a prospector may lawfully lo-
cate, and he has made such a discovery as justifies
a location upon it, it makes no difference what its size
or value as compared to the size or value of other
veins asserting hostile title against such location. —
Book v. Justice Co. 58 Fed. 125.
Proof of Mineral Contents.
The discovery must be of a mineral bearing vein
or deposit. The proof of mineral value does not re-
quire an assay, although an assay if taken is of mate-
rial value as evidence. — Healey v. Rupp, 63 Pac. 319.
What is quartz or mineral bearing rock is de-
terminable by the eye in most cases and such ores as
galena, zink-blende, copper pyrites and -many others
necessarily indicate mineral contents. There are,
however, varieties of ochre and other discolored earth
and rock which may or may not carry any kind of
valuable mineral, in which instances an assay or^
other test in common reason should be required.
Lode Found Outside of Discovery Shaft.
It has been decided in some of the States that
although no lode was found in the discovery shaft,
its disclosure elsewhere within the claim before any
adverse rights had accrued would validate the claim.
— Harrington v. Chambers, 1 Pac. 362; affirmed 111
U. S. 350; North Noonday Co. v. Orient Co. 9 M. R.
529. But to the contrary, in Colorado under its stat-
ute is the case of Van Zandt v. Argentine Co. 4 M. R.
2
34 DISCOVERY AND LOCATION.
441; Terrible Co. v. Argentine Co. 89 Fed. 583; af-
firmed 122 U. 8. 478. And if it be true that the sink-
ing of the discovery within patented lines or the pat-
enting of the discovery shaft by a hostile claim in-
validates the entire claim; and if the discovery shaft
be, as it is, the point from which both length and
width of the claim are determined, the point at which
the notice is to be posted, and where it is required in
terms by the language of the statute to show a well
defined crevice, and the lode in place — it seems in-
consistent to hold that discovery elsewhere would be
of any avail when there was none in the discovery
shaft.
The question has been before the Supreme Court
of Colorado in two cases which refer to the point
without any satisfactory or consistent ruling upon
it— Beats v. Cone, 62 Pac. 948; Healey v. Hupp, 63
Pac. 319.
In a Montana holding, based strictly on the con-
struction of the statute in that State, it was ruled
that the discovery shaft need not necessarily show
the vein, provided it was disclosed elsewhere on the
claim.— O'Donnell v. G-lenn, 19 Pac. 302.
By Relocation Upon the Shaft showing the min-
eral afterwards discovered, this danger can. be
avoided where no hostile discovery has intervened.
A new record based on a new discovery is an
abandonment of the original location.— Seals v. Cone,
62 Pac. 956.
The Point at Which a Lode is Discovered is not
material. It may be discovered at the surface
where it outcrops above all surrounding country
rock; or under the slide near the surface at its true
apex, by shaft, open cut or boom ditch; or at a
greater depth by a tunnel cutting the vein horizon-
tally across its dip, or by a shaft striking it perpen-
dicularly upon the incline.
The Discovery Shaft need not be sunk at the point
where the lode was first actually discovered. The
DISCOVERY AND LOCATION. 35
prospector has the right to choose a more conven-
ient spot from which to base and outline his claim.
— Harrington v. Chambers, 1 Pac. 375.
All Methods of Discovery, whether by shaft, cut,
tunnel, boom-ditch or otherwise, are recognized by
the statutes or district regulations everywhere, the
only distinction being, where a discovery of a cer-
tain depth and showing certain things is required,
that when discovered at the surface or in the slide
there must be a shaft at least ten feet deep, or
deeper, if necessary to show a well denned crevice;
while if disclosed in a cross-cut or tunnel, the vein
must be cut and a well defined crevice exposed, at
least ten feet below the surface.
Discovery by Prospecting Drill.
The discovery of a lode or deposit by either hor-
izontal or vertical drilling would doubtless fulfill all
the conditions of a legal discovery, and would operate
to give the party the legal time allowed to complete
a discovery shaft; but the idea that a drill-hole would
be considered as the equivalent of a discovery shaft
can not be entertained. It would be a physical im-
possibility for such drill-hole to show a well defined
crevice, and a drill-hole is neither a shaft, cut or
other opening such as are enumerated among those
things which may constitute a discovery shaft or cut.
The discovery of a lode is a matter of interest to the
prospector only; but if he intend to appropriate the
same it must be by such physical workings as shall
amount to a notice to third parties. A drill-hole
is not a notorious, physical land mark, and could not
be construed as such notice.
Discovery Holds How Long?
A discovery in Colorado, Wyoming, North or
South Dakota, Montana and Oregon holds the claim
for the sixty days allotted to sink the discovery shaft.
— Marshall v. Barney Peak Co. 47 N. W. Rep. 290.
Arizona, Nevada, New Mexico and Washington allow
ninety days. Idaho allows sixty days, but claim must
36 DISCOVERY AND LOCATION.
be staked within ten days after discovery. In Alaska
the discoverer has ninety days to record, but district
rules may prescribe shorter periods for shaft or other
location work.
In those States which prescribe no specific time,
what is denominated a reasonable time is allowed in
which to complete the location. What is a reasonable
time depends upon circumstances, but it is not to be
stretched indefinitely. In Patterson v. Hitchcock, 5
M. R. 542, it was ruled that ninety days to sink a
shaft was more than a reasonable time. In Doe v.
Waterloo Co. 55 Fed. 12, a prospector completed his
staking in twenty days, and he was held to be in
good time.
As soon as a vein is found by the prospector it is
the custom to place at the point of discovery a notice
about as follows:
CONTENTION LODE.
The undersigned claims sixty days to sink discovery
shaft and three months to record on this vein. January
4, 1903.
JOHN S. YOUNG,, Discoverer.
But if it is bona fide the intention of the discov-
erer to complete his location, the absence of such
notice would not be fatal. This is not the notice re-
quired when the location is made (page 38). It is a
mere warning to other prospectors that some one has
acquired a prior right to locate -on that crevice.—
Erhardt v. Boaro, 15 M. R. 472.
In a New Mexico case this peculiar language is
used: "The locator is entitled to no appreciable time
after discovery to determine whether he desires to
locate and claim the benefit of his discovery. Discov-
ery and posting notice of claim, therefore, must be
practically cotemporaneous." Deeney v. Mineral Co.
67 Pac. 725.
If by discovery is meant mere ocular perception
of an outcrop visible to all it may be true, but every-
where, where the discovery is the result of the labor
of the prospector he has without doing any further act
DISCOVERY AND LOCATION. 37
a reasonable, or the statutory time, to perfect the
location.
Renewing Notice.
It seems useless to add that if the discovery shaft
is not completed within the legal time it is mere folly
to pull down the old notice and put up another of a
later date. The sixty days (or other statutory pe-
riod, or the reasonable time) begin to run from the
date of discovery, and no self-serving act of the pros-
pector can enlarge the time.
Location.
The location of a lode consists in defining its
position and boundaries, and in doing such acts as
indicate and publish the intention to occupy and hold
it under the license of the United States.
The formal parts of location include:
1. The location notice at discovery.
2. The discovery shaft.
3. The boundary stakes.
Location Stake.
Although a very old custom, the requirement of
the Colorado Act of 1866, repeated in the present Act
of 1874 as to a location stake, was not always con-
sidered imperative, but there are decisions under the
present statute which enumerate it as one of the con-
stituent parts of a complete location. — Strepey v.
Stark, 7 Colo. 618; Cheesman v. Shreeve, 40 Fed. 787;
17 M. R.
In fact this location notice was in early locations
the principal and often the only specific act of loca-
tion. It was a universal custom before any statutes
existed purporting to regulate location.
The words of the Act require "a plain sign or
notice," but there never has been any uniformity
among prospectors in the details of the notice, or in
the mode of posting it. It may be substantially com-
plied with by writing on a blazed tree or on a board
nailed at discovery, or by legible carving, or by any
38 DISCOVERY AND LOCATION.
other rude but honest form of notice, so that it be
intelligible and open to observation; but the loose
practice of writing on a chip or stick thrown into the
discovery hole, is an attempt to evade or abuse the
fair requirement of the law. In Gird v. California
Oil Co. 60 Fed. 531; 17 M. R. ..., the notice was
placed in a tin can on a mound of stones and it was
upheld. The following
FOKM OF NOTICE ON STAKE.
THE FAMINE LODE,, discovered by Charles J. Allen, Feb-
ruary 17, 1903. Claim 750 feet easterly and 750 feet
westerly from discovery. CHARLES J. ALLEN.
fully complies with the law and custom, and would
still be sufficient without signing at the foot and with-
out stating the number or direction of feet claimed.
This notice need not call for monuments or ties —
that is required of the record only. — Poujade v. Ryan,
33 Pac. 660; Brady v. Husby, 33 Pac.. 801.
Such notice holds the claim for a reasonable time
before setting the boundary stakes or other work.
Union Co. v. Leitch, 64 Pac. 829.
Right to Swing Claim.
In Sanders v. Noble, 55 Pac. 1037, the Never
Sweat discoverers had posted their notice claiming
500 feet Southerly and 1,000 feet Northerly. During
the ninety days allowed for filing location certificate
other parties discovered the Yukon. They had read
the Never Sweat notice and purposely kept clear of its
ground. The Court held that the law gave the lo-
cators full ninety days to choose where they would
ultimately fix their corners; that the Never Sweat
locators were not estopped by their notice and could
swing their location nearly at right angles and take
in the Yukon ground. The opinion is very thorough
and contains a full review of previous cases, but does
not meet the proposition: that while the prospector
may have such full time for such purposes he loses
it the moment he by a positive act limits the general
area which his monuments when set will include.
DISCOVERY AND LOCATION. 39
We can not for a moment believe that a prospector
after posting notice claiming 750 feet easterly and 750
feet westerly, could dispossess an intervening party
who had sunk a hole 800 feet easterly from such no-
tice. But such an instance is scarcely distinguish-
able from the decision quoted. See Wiltsee v. King
Co. 60 Pac. 896.
Easterly, Westerly.
In the latter case the location notice claimed so
many feet easterly and westerly. It was held that
in such preliminary paper the words were not to be
construed as due east and west, but that he could
locate on any course within 45 degrees of east and
west.
Discovery Shaft Must be on Public Domain.
The discovery must be sunk upon unoccupied
public land; that is to say, it must be outside of the
lines of any patent or even of any valid location. —
Upton v. Larkin, 6 Pac. 66; Little PgTi. Go. v. Amie
Co. 17 Fed. 57; Armstrong v. Lower, 15 M. R. 631;
Golden T. Co. v. Mahler, 4 M. R. 390; Moyle v. Bullene,
44 Pac. 69; Watson v. May~berry, 49 Pac. 479; Tuo-
lumne Co. v. Maier, 66 Pac. 863; Reynolds v. Pascoe,
Id. 1064.
In the Larkin-Upton case, the discovery shaft was
partly on patented ground but a part of it showing
the vein or a portion of the vein was on clear ground
and its validity was upheld.— 7 Mont. 449; 144 U. 8. 19.
Exceptional Case — Town Site.
Assuming that all known lodes have been ex-
cepted from a Town Site Patent, a discovery shaft
may be sunk upon and within the area of its patent. —
Moyle v. Bullene, 44 P^c. 69.
Patent Over Discovery Shaft.
And where a party allows a claim held by other
parties to go to patent over his discovery shaft, "the
loss of the discovery is a loss of the location." G-wil-
40 DISCOVERY AND LOCATION.
Urn v. Donnellan, 15 M. R. 482; Milter v. Girard, 33
Pac. 69; Girard v. Carson, 44 Pac. 508.
Where a senior claimant allows a location to be
made over his discovery shaft and to go to patent, his
claim becomes a void location not only as to such
patent, but as to all persons and claims.
In an instance with special equities where an ag-
ricultural patent was issued covering that end of a
lode claim on which all, or nearly all, the work had
been done and where the clear end of the claim could
be practically reached only by work commenced on
the patented end, the court distinguished the case
and held that Gwillim v. Donnellan did not apply.—
Richard v. Wolfling, 32 Pac. 971; Post, p. 120.
Sale of Discovery Shaft.
But the sale of that part of the claim containing
the discovery shaft does not invalidate the title of
that part which the locator retains. — Little Pgh. Co.
v. Amie Co. 11 Fed. 57; and in this case the grantees
had afterwards gone to patent on the ground contain-
ing the discovery shaft, as parcel of another claim.
A distinction can readily be drawn between this and
the Donnellan case, supra; and yet they are so close
that it may be considered dangerous to convey that
portion of the lode containing the discovery without
proper covenants against patenting it as parcel of
another claim.
Claim Must Include Discovery Shaft.
It is self-evident that the claim must include the
discovery shaft, and proof that by change of boun-
daries they were made so as to exclude the discovery
shaft is admissible to defeat such location.— McGin-
nis v. Egbert, 8 Colo. o4; 15 M. R. 329.
A location of certain bounds upon a discovery
shaft exterior to such bounds, upon a lode which on
its strike would extend into the lines staked off, is
a claim without a discovery and is void. — Michael v.
Mills, 45 Pac. 429.
DISCOVERY AND LOCATION. 41
Depth of Discovery Shaft.
In the Colorado case of the Maine and Phoenix
lodes, located under the act of 1866, Hon. Judge
Belford decided that when a discovery shaft was
sunk upon sloping ground the average might be
taken to determine whether the shaft was of legal
depth; but since June 15, 1874, it must be at least
ten feet from the lowest part of the surrounding sur-
face.
After a shaft has been sunk ten feet, the ground
at the collar may cave, or the shaft may become so
filled with debris, or the making of a platform or
raised collar may make it difficult to ascertain the
exact line of the original rim of the shaft, or to ascer-
tain its original bottom. In view of these facts and
of the essential importance of the shaft being full ten
feet deep, it is always advisable to sink it two or
three feet deeper and remove all ground for cavil or
contention.
The Shaft Must be Ten Feet Deep, by statute in
all the mining States except Alaska? California,
North Dakota and Utah. Idaho requires also cer-
tain dimensions, i. e., not less than sixteen square
feet area. In Washington ho shaft is required west
of the summit of the Cascade mountains.
In those States whose statutes do not mention
any specific depth the discovery point must show the
lode by a hole or cut sunk or driven to or on the
vein. But in those States if the discovery notice
is posted on a naked outcrop no hole or cut is neces-
sary unless required by district rule, or by statute as
in North Dakota, which requires a shaft, but does not
fix the depth.
The State Statute requiring a specific depth of
ten feet is a valid exercise of the right of regulation
allowed to the legislature, under the Congressional
Act. — Sisson v. Sommers, 55 Pac. 829.
42 DISCOVERY AND LOCATION.
Subsequent Deepening of Shaft.
Where the discovery shaft has not reached the
legal depth at time of record, but has been completed
to that depth afterwards and before any adverse
rights have intervened, such discovery shaft is valid.
This is a matter of course on the general ruling as to
performance of the various acts of location being suf-
ficient in all instances where complete before third
parties assert rights, though not within the statutory
period. — McGinnis v. Egbert, 15 M. R. 329, and cases
there cited.
Discovery Must Show Well Denned Crevice.
Besides reaching a certain depth, a well defined
crevice must be found in the shaft. — Cheesman v.
Shreeve, 40 Fed. 787; 11 M. R. —. "Crevice" means
a "mineral bearing vein."— Seals v. Cone, 62 Pac.
958.
If a crevice does not show in ten feet, the shaft
must go deeper; if it appear sooner, the ten feet must
still be completed. The crevice shows the lode dis-
covered, the depth shows the lode appropriated; even
before the passage of any ten-foot shaft law, such a
crevice was required to be shown, as decided by Hon.
Judge Belford upon the location of the Bowman lode;
but in the Eagle-Badger injunction case, decided at
Denver, Hon. Judge Wells, while holding the neces-
sity of a discovery shaft of the depth fixed by statute,
also ruled that the term "crevice" must be taken in
connection with the nature of the deposit,' and that if,
as was suggested, the Mt. Lincoln discoveries were
not true veins or fissures, the shaft might pass en-
tirely through the deposit and still remain a valid
monument of occupation.
It Need Not Contain Ore or Mineral, but it must
show mineral bearing rock— that is the gangue or
crevice nJRrial of the vein — Copper Globe Co. v. All-
mann, If Pac. 1020 — and it is error to omit this,
as one of the essential elements of a discovery
DISCOVERY AND LOCATION 43
shaft in an instruction purporting to define such ele-
ments.— Bryan v. McCaig, 10 Colo. 309. It need not
show pay ore. — Muldrick v. Brown, 61 Pac. 428.
Discovery Shaft Need Not Show Wall.
It has been decided in Montana (Foote v. Na-
tional Co. 9 M. R. 605) that at least one wall of the
lode must be disclosed before the vein can be consid-
ered as discovered. But this decision makes the dis-
covery dependent upon a single incident, which is not
by any means the only proof of the existence of a
vein. This case, as well as O'Donnell v. Glenn, 19
Pac. 302, are based on a requirement^ of the Montana
Statute to such effect (since repealed), and not upon
reason or the nature of the subject-matter, and have
therefore no pertinency to discoveries made under the
regulations of an entirely different Statute, or in ter-
ritory where there is no statutory regulation' of the
subject. — Fleming v. Daly, 55 Pac. 947. There are
certain classes of deposits which are doubtless lodes
or veins within the intent of the Act of Congress,
which show no well defined walls after thorough de-
velopment, much less within that amount of working
which is required as the basis of a record.
Shaft Through Slide or Country.
Nor does it make any difference that the shaft
is started in slide or upon a stratum of country rock,
if it pierce through the slide or country and find a
crevice at a depth of ten feet or more. Such a shaft
fulfills all the statutory conditions. But it must reach
the lode in place; it is not enough that it strike
a mass of ore mixed with broken slide and country.
— Van Zandt v. Argentine Co. 4 M. R. 441; Waterloo
Co. v. Doe, 56 Fed. 685.
Discovery in Broken Ground.
It is a common incident to find the lode at sur-
face with its sides and body more or l^L shattered,
or perhaps with the entire top of the v^p broken
over with the adjacent country. Such a lode is never-
44 DISCOVERY AND LOCATION.
theless in place. The shattering and breaking over
are only mechanical accidents and no more destroy
the position of the vein as a thing in place than a
fault breaks the legal continuity of a vein followed
on its strike. — Jones v. Prospect Co. 31 Pac. 642.
Separate Discovery for Each Claim.
The attempt to locate two full claims upon one
discovery shaft is a palpable fraud. — 16 L. D. 1; Mc-
Kinstry v. Clark, 4 Mont. 310; Reynolds v. Pascoe,
66 Pac. 1064. It is sometimes alleged that two lodes
cross in the discovery shaft, but no ten-foot shaft
can prove such fact if such a coincidence ever occurs,
nor would it alter the law of the case if it did occur.
Open Cut, Adit and Tunnel Discoveries.
All the mining States except Utah, California
and Alaska practically follow the Colorado Statute
providing that discovery by means of an open cut,
adit, cross-cut or tunnel shall be equivalent to a
shaft. Where the discovery is by cross-cut, tunnel
or open cut, it must show the lode at a depth of ten
feet below the surface; that is to say, the breast of
the cut or tunnel must be of that depth at its bottom
to be the equivalent of a ten-foot discovery shaft;
but where discovery is by an adit, the Colorado Su-
preme Court have ruled in two cases that it need not
be ten feet deep, nor any specific depth, at the breast,
but that the adit must be ten feet in length along
the vein. — Gray v. Truby, 6 Colo. 278; Electro Co.
v. Van Auken, 9 Colo. 204.
In the latter case they also held that an adit need
not enter cover to be an adit. The effect of the latter
decision is to confuse all the distinctions between an
adit and -an open cut, so that if the hole or stripping
discloses ten feet in length of the vein, it may be
styled an adit, although in fact an open cut. It is not
safe to iflfy on this construction, and no prospector
should consider his discovery complete until he has
DISCOVERY AND LOCATION. 45
ten feet in depth at the breast of his cut, or a covered
adit at least ten feet in along the vein.
The words cross-cut and tunnel are identical
terms, except that the former is usually applied to
short workings and the latter to those of greater
length.
In States which have no such statute the law is
the same upon general principles. It can make no
difference to the government nor to the rights of
other prospectors whether the discovery be by verti-
cal or horizontal cutting. Either mode complies with
both the letter and the spirit of the law.
Secret Underground Discovery.
The only class of discoveries which would sug-
gest any difficulty is where, by extending the works
of an old claim, the drift or an underground cross-
cut or other working, passes beyond the claim and
discloses either a new vein, or the extension of the
old vein into clear ground. We can not see any ob-
jection to locating such claim upon the discovery so
made below, the notice being placed on surface at
the proper point above the underground discovery
and referring to such point of discovery.
In Little Gunnell Co. v. Kimber, 1 M. R. 536, a
secret underground working from an old claim was
not allowed to hold as a valid basis for re-location
of an adjoining claim, but that decision was upon
the letter of the Colorado Statute concerning re-
locations which in terms requires a shaft to be sunk
or other new opening to be made, nor had such secret
discovery been followed by proper surface notice.
Notice and Staking Upon Cross-Cut Discoveries.
In the case of cross-cuts or tunnels not recorded
under the Act of Congress, the point on surface
above the discovery intended as the center line of the
claim is the point at which the location notice is
posted, and the stakes are placed to embrace an area
in which this notice stands at a point on such center
46 DISCOVERY AND LOCATION.
line. The discovery in the cross-cut will of course
be on the same line carried down vertically unless an
allowance is made for the dip. With the exception
of the point of placing notice, no distinction exists
in the process of locating and recording between these
cases and those of surface discoveries.
Discovery in Statutory Tunnel.
Where a lode is cut in a tunnel located and re-
corded so as to claim -the rights of a prospecting
tunnel under the Act of Congress (Sec. 2323) we
advise where practical a posting, staking and record-
ing of each lode as it is cut, exactly as in the case
of discovery in an unrecorded cross-cut. But it has
been held that such discovery in a located tunnel is
good and will hold without any staking on the sur-
face against a subsequent surface discovery. — Ellet v.
Campbell, 18 Colo. 510. In the case referred to a
notice had been posted at the mouth of the tunnel
and a record had been made reciting the discovery
in the tunnel and claiming the proper length and
width, but not giving surface boundaries. This case
was affirmed in the Federal Supreme Court, so that
the question has now received final judicial construc-
tion. The Court, however, concede that it may be
true, as suggested in previous Editions of the Mining
Rights, that before a patent can be secured to the
lode there must be a surface location. — Campbell v.
Ellet, 167 U. S. 116.
Where the discoverer staked the claim on the
projection of the dip found in his cross-cut (not a
statutory tunnel) to surface, the location was held
good. — Breivster v. Shoemaker, 63 Pac. 309.
Staking Boundaries.
That the staking of the surface boundaries of
the claim has been required upon all surface locations
made since May 10, 1872, has been repeatedly decided.
— Gelcich v. Moriarty, 9 M. R. 498; Hauswirth v.
Butcher, 4 Mont. 299; Gohres v. III. Co. 67 Pac. 666;
Deeney v. Mineral Co. Id. 724- These decisions are
DISCOVERY AND LOCATION. 47 v
not made upon local statutes, but as the construction
of R. S. Sec. 2324, above printed; nor can we see how
any other construction can be contended for. It fol-
lows, therefore, that since May 10, 1872, surface stak-
ing along the bounds of the claim has been required
in all cases, without regard to State, Territorial or
District Legislation requiring such staking. Such
legislation, when it existed, has been to direct the
details of the staking, but a sufficient staking has
been required under the Act of Congress whether the •
local rule has been silent or outspoken on this point.
The Martin White case, below quoted, is to the same
effect and gives a full review of the different modes
of location on the Pacific Slope.
It may be true in instances, that hardship results
under this provision; but it is better for a party to
lose a portion of his vein by its departure from its
staked lines, than that he be allowed to leave his vein
and its course undetermined until a rich discovery in
the vicinity suggests the time arrived to "prove up"
and take his neighbor's lode. This is not a forced
illustration— it is the very evil which the law is in-
tended to prevent. — Gleeson v. Martin White Co. 9
M. R. 429; Gonu v. Russell, 12 M. R. 630; Gilpin Co. v.
Drake, 8 Colo. 586; Sweet v. Webber, 7 Colo. 443.
Posting the discovery notice is not the equivalent
of marking the surface boundaries. — Doe v. Waterloo
Co. 70 Fed. 456.
Corners Set on Prior Claims.
The setting of stakes on prior locations or pat-
ents has been held valid. Such surveys are sustained
with the reservation that such technical trespass is
accomplished without breach of the peace. — Del Monte
Co. v. Last Chance Co. Ill U. S. 55; Bunker Hill Co.
v. Empire State Co. 109 Fed. 538; 30 L. D. 420; 31
Id. 121.
The Locator Owns Only What His Lines Enclose,
although not chargeable with fault in making them.
It is better for him to lose part of the lode than to
48 DISCOVERY AND LOCATION.
make title dependent on the result of developments
made after lines have been chosen. — Iron Silver Co.
v. Elgin Co. 15 M. R. 641.
Three Months to .Complete Staking is the time al-
lowed by implication from the Colorado Stat-
ute. The discoverer has sixty days to complete
his discovery shaft and three months to record. If his
staking is completed at any time within three months,
that is, within the period allowed between the date
of discovery and when the record must be made, it
is in apt time. He is allowed less time to sink his
discovery than to set his stakes, because he may
know, as soon as his vein is disclosed, where to sink;
but he can not so readily know the course of the
vein, and consequently needs time for this part of
the location, inasmuch as, his stakes once set, he
covers no more of his vein than lies within them. —
Erhardt v. Boaro, 15 M. R. J/72.
Even if the setting of his stakes is delayed be-
yond the period of three months, the location is not
invalidated where no adverse rights have intervened.
— McGinnis v. Egbert, 15 M. R. 329; Crown Point Co.
v. Crismon, 65 Pac. 87.
When the time to complete staking is not fixed
by statute or district rule, a reasonable time is al-
lowed. Twenty days has been held to be a reasonable
time. — Doe v. Waterloo Co. 10 Fed. J/56.
All Statutes Limiting Time to perfect location
and record are directory where there is but a single
claimant, or but one set of claimants, and delay be-
comes material only where the rights of third par-
ties have intervened.
Diagram of Location.
The diagram of a lode correctly located, under
the present Colorado law (Act of 1874), will show
substantially as follows:
DISCOVERY AND LOCATION. 49
Post Post Post
Discovery Shaft** Location Stake
Post Post Post
ELEMENTS OF LOCATION.
1st. Discovery Shaft at least ten feet deep from
the lowest part of the rim at the surface, and show-
ing a well-defined crevice.
2d. Location Stake; a plain sign or notice con-
taining the name of the lode, the name of the lo-
cator, and the date of discovery.
3d. Center Stakes; two substantial side posts
sunk in the ground and hewed on the side which
is in toward the claim. These side posts must be
sunk in the center of each side line; that is, in a
1,500 foot claim, 750 feet from each end line.
4th. Corner Stakes; four substantial stakes, one
at each corner of the claim, sunk in the ground and
hewed on the two sides which are in toward the
claim.
5th. Extra Angles.
It is the invariable custom where there are angles
in the side line, to place a stake, hewed on the side
in toward the claim, at each angle.
For number, position and marking of stakes in
the several States, see STATUTORY REQUIREMENTS,
page iW.
Must Cover Apex.
The stakes of the location must include the apex
of the vein, and in so far as they fail so to do the
claim is void or defective to that extent. That is to
say: the theory of the Statute is that a normal loca-
tion will cover the apex of a vein and have the right
to follow the vein on the dip. If the location fail to
cover the apex and the lode dips away from the claim,
50 DISCOVERY AND LOCATION.
so much of the vein is clearly lost; if after losing
the apex the location is laid so as to cover the vein
on its pitch underneath the side lines as it dips back
into or under the side lines, another question arises.
The points arising in this class of cases are consid-
ered under "APEX."
Locating Without Aid of Surveyor.
In locating any class of claim, a survey is always
advisable.
If the prospector, however, can not procure a pro-
fessional surveyor (and it is often impracticable), a
reasonable degree of care will suffice to locate his
boundaries with certainty sufficient to make the sub-
sequent record valid.
The record is merely a description of the claim as
staked on the ground; if not properly staked the
record does not make a good location, but if the loca-
tion has been properly made, the record can readily
be made to describe it fully, whether such location
has been made by a surveyor or otherwise.
The discovery shaft being taken as the center
of the claim and the initial point of location, a tape
measurement from its center 150* feet at right angles
to the lode, reaches to the point where a center stake
must be set; return to discovery shaft and continue
the same line on the other side the same direction
and set the second center or side stake; at right an-
gles to this line and across the center of discovery
shaft run a line 750 feet each way along the supposed
course of the lode. This gives the center line length-
wise of the claim, and from each end of this center
line measure 150 feet on each side for the end lines
on the same course as the line between the center
* Seventy-five feet in Clear Creek, Gilpin, Boulder and
Summit Counties, Colorado, and 150 feet in all other coun-
ties in that State ; 1 50 feet in North and South Dakota ;
and 300 feet in other States and Territories, unless lim-
ited to less by district rule. This 75 feet, 150 feet or 300
feet is of course one-half the width of a 150, 300 or 600
foot wide claim. »
DISCOVERY AND LOCATION. 51
stakes, which will give the four points at which to
set the corner stakes, and will also make the end
lines parallel as required by law.
Measuring the length of the claim along its cen-
ter, with an offset of 150 feet at right angles in each
direction at discovery shaft and at each end, brings
the same result as if both the side lines as well as
the end lines were measured.
Diagram of Lines to be Run.
The dotted lines on the following diagram show
the four lines to be measured on a prospector's sur-
vey, and the six points at which stakes are to be set:
Corner Center Stake Corner
\Df'scovery 'Shaft
Corner Center Stake Corner
Staking and Marks on Stakes.
At each of the four real corners of the claim,
at the center of each side line and at each extra
angle made in the claim, set a substantial stake,
blaze it and mark the blazed part with its proper
number and the name of the lode. In addition to the
number write "North center side stake," "South cen-
ter side stake," "N. E. Cor.," etc., as the case may be,
and put the name of the lode on each stake.
The Statute of Colorado requires each stake to
be hewed or marked on the side or sides in toward
the claim. This would be satisfied by blazing alone,
but it is customary to shave the in side (which in-
dicates the relation of the stake to the claim) and
mark with pencil the name of the lode, number of
corner, etc., as above directed.
Marking three out of four corners was held suf-
ficient in a Utah case. — Warnock v. DeWitt, 40 Pac.
205. Review of citations on the point of sufficient
staking. — Howeth v. Sullenger, 45 Pac. 841.
52 DISCOVERY AND LOCATION.
Numbering the Corners.
Any corner may be called No. 1; call the other
corner on the same end line No. 2, and proceed thus
continuously around the claim, setting an additional
corner post at each angle of the claim. Even in of-
ficial surveys there is no uniform rule as to which
corner is numbered one.
Position of Center Stakes.
In the case of the Hardin Lode, the claim was
surveyed 600 feet in one direction and 900 feet in the
opposite direction from center of discovery. The
center stakes were placed opposite discovery, which
left them each 150 feet from their proper places.
The Supreme Court held that they could not be con-
sidered as substantially in the center; but on the
other hand, they held that if the corner posts were
properly on the ground, the absence of center stakes
did not invalidate the location. — Pollard v. Shively,
2 M. R. 229.
Tying the Claim.
In addition to staking the boundaries it is essen-
tial to have sufficient ties by which to identify the
claim in the location certificate. The use of the
bearings to mountain peaks used by surveyors with
instruments is impracticable in this kind of survey
— take instead of such monuments, marks carved on
prominent boulders or prominent blazed trees, neigh-
boring shafts or shaft-houses. Anything which is a
"natural object" or "permanent monument" (and
reasonably substantial and prominent) is sufficient
to identify the claim. Prom the center of the dis-
covery and from at least one of the corner posts,
take careful measurements of the exact distance to
such monuments (the most prominent possible un-
der the circumstances) as have been selected to use
in the location certificate to tie, describe or identify
the claim.
DISCOVERY AND LOCATION. 53
No specific number of ties are required, but at
least two different monuments should be selected for
such purpose.
What Are Sufficient Ties.
A tree blazed or otherwise referred to by some
peculiarity as in Quimby v., Boyd, 8 Colo. 194, "a
double spruce tree," has been declared a sufficient
monument. In certain places trees might be the
only objects available, and have been considered good
boundary monuments or witnesses from time im-
memorial. A neighboring shaft or a prominent post
firmly fixed in the ground is a good monument. —
Jupiter Co. v. Bodie Co. 4 M. R. 412. Mountain peaks
are good calls. — Craig v. Thompson, 10 Colo. 517.
Calling for Adjoining or Neighboring Claims.
The earlier decisions were to the effect that a
call for another mine or claim was not a call for a
permanent monument, and that a location certificate
having such a call and no other, or no other suf-
ficiently specific, was not a compliance with R. S.
Sec. 2324.— Baxter Co. v. Patterson, 3 Pac. 741;
Drummond v. Long, 1.1 M. R. 510; Gilpin Co. v. Drake.
8 Colo. 586. As late as 1896 an extreme ruling to
the s^rne effect was made in an Idaho case, Brown
v. Levan, 46 Pac. 661; overruled in 1902 by Morrison
v. Regan, 67 Pac. 955. There the first call was "about
one-half mile from the Hurt Mines, the direction be-
ing Southwest." That call of itself was indefinite
enough, but the paper also called for three adjoiners.
The Statute of Idaho (at that time) required adjoin-
ing claims to be named. The Court held that such
call for adjoiners did not aid the tie to the Hurt
group of mines. If the call for the adjoiners of it-
self made a good description we can not see why such
call should be rejected as not aiding the defective tie
to the Hurt mines, from the mere fact that to call for
adjoiners was a Statutory requirement of the location
certificate.
54 DISCOVERY AND LOCATION.
All the later cases hold that a call for even a
single claim, either as an adjoiner or near neighbor,
makes a sufficient description. That a mine or min-
ing claim may be a permanent monument and that if
not so developed or known as to be a permanent mon-
ument the proof of such fact is upon the objecting
party. — Book v. Justice Co. 58 Fed. 106; Riste v. Mor-
ton, 49 Pac. 656; Kinney v. Fleming, 56 Pac. 723;
Seidler v. Lafave, 20 Pac. 78.9, overruling the Baxter
case, supra; Shattuclc v. Costello, 68 Pac. 529.
A notice calling for adjoiners on all four sides
was held valid, although the claim was described as
in a quarter section different from the true one.—
Duryea v. Boucher, 7 Pac. 421.
Description by Metes and Courses Not Essential.
A record based on a location made as above di-
rected, the corners and side stakes being marked and
the notice set, which so identifies the situation of the
claim (by reference to natural objects or permanent
monuments tied to its discovery shaft or corners)
that it may be readily found by a stranger examining
the record, and for courses calls for some certain gen-
eral direction and otherwise complies with all the
statutory requirements herein stated — is as valid as
one which calls for degrees, minutes, metes- and
bounds.
The Terms Southerly, Northerly, Etc., as used by
miners in location certificates and notices, are
not to be read as due south or due north so as to
defeat the location. — Smith v. Newell, 86 Fed. 56;
Glass v. Basin Co. 55 Pac. MJfi. See p. 38.
Precautions at Time of Location.
The side and corner stakes being properly set,
the location stake fixed and properly inscribed, and
the distance to ties or monuments measured, take
the precaution at the time to measure the depth of
the discovery shaft to see that the full ten feet in
depth exist, recollecting that the collar is apt to cave
DISCOVERY AND LOCATION. 55
in and the bottom to fill up with soil, inviting an
attack on the location for want of legal discovery.
Note the exact result of this measurement on the
location stake.
Size of Stakes, Etc.
The statute says that the posts shall be sub-
stantial and shall be sunk in the ground. The Land
Office Regulations, which are more specific, require
them to be not less than four inches in diameter,
three feet long, and set eighteen inches in the ground;
if of stone, twenty-four inches long. — Rule 143.
It is not essential to put the name of the claim
on the boundary stakes. — Smith v. Newell, 86 Fed. 56.
Trees, Stumps and Boulders As Corner Posts.
In Pollard v. Shively, 2 M. R. 229, the Court held
that a stump properly marked might be adopted as a
boundary stake, and there is no doubt that a stone
post literally complies with the law. And the call-
ing for trees as corners, when in fact stakes stood for
corners, has been treated as immaterial error, when
there were other calls by which to fix the claim. —
Upton v. Larkin, 15 M. R. 404; Hanson v. Fletcher, 37
Pac. 480. The L. O. Regulations also recognize both
stones and rock in place. — Rule 143.
Cutting a letter into solid rock held not equiv-
alent to a stake. — Taylor v. Parenteau, 48 Pac. 505.
Where Stakes Can Not Be Set.
Where a stake can not be driven on account of
bed-rock, it should be fixed in a pile of stones, and in
official surveys this marking is required in all cases.
Where a stake can not be set on account of precipitous
ground, the witness stake should be set as near as
possible, and on it should be expressed the course and
distance to the corner or center stake, for which it is
a substitute. The provisions of the Colorado Stat-
utes on this point (p. 27) can not be invoked where
the setting of the stakes is merely difficult or incon-
venient.— Croesus Co. v. Colorado Co. 19 Fed. 78.
56 DISCOVERY AND LOCATION.
Where the stakes of one end of a claim were not set,
merely because the point was difficult of access, it
was held that the claim was not valid. — Id. A like
ruling was made where a corner fell upon a railroad
embankment. — Seals v. Gone, 62 Pac. 949. And as a
matter of course, the failure to set them through
inadvertence or neglect would be fatal.— Patterson v.
Tar-bell, 37 Pac. 76.
Variation Between Courses and Monuments.
As the result of carelessness, accident or defective
instruments, variations between the courses called for
in the record and the monuments on the ground, are
matters of constant occurrence. The general rule in
such cases is that the monuments control. — Cullacott
v. Cash Co. 8 Colo. 179; 15 M. R. 392; Book v. Justice
Co. 58 Fed. 106; Stonewall Co. v. Peyton, 23 So. 440.
But it was held in the Hardin Lode case, 2 M. R.
229, that the monuments would not control where
they varied from the kind of monuments called for
in the record— that a call for a "post" was not satis-
fied by a "stump" — and further, that in the case of
possessory claims the monuments must be kept up
so as to be found upon the ground — and that other-
wise the calls in the location certificate must control,
observing that this ruling was essential to prevent
the danger of swinging locations.
Maintaining Stakes.
Once properly set stakes have performed their
original office and their subsequent removal or ob-
literation not done by the act of the party does not
vitiate the claim. — Book v. Justice Co. 58 Fed. 107;
McEvoy v. Hyman, 15 M. R. 397; Smith v. Newell,
86 Fed. 56.
But where not maintained, a misdescription in
the record, otherwise immaterial, may become serious,
if not fatal, because to correct courses or other errors
by monuments the monuments must, in general, be
found upon the ground.
DISCOVERY AND LOCATION 57
A Location May Be Made By An Agent, and in
such case written authority is not essential. —
Hurley v. Ennis, 12 M. R. 360; Schultz v. Keeler, 13
Pac. 481; Rush v. French, 25 Pac. 816; Dunlap v. Pat-
tison, 42 Pac. 504. In such case the location certifi-
cate should be signed by writing the name of the
principal, followed by that of the agent — "Barton A.
Hopkins by J. Mason Hall, agent." In writing names
on stakes and notices this is unnecessary — write only
the name of the principal — because such signing is not:
a signature and it is immaterial by whom done so
that the act is recognized or adopted by the party
whose name is used. Even in subscribing the loca-
tion certificate the names are often written by the
party who makes out the body of .the paper (without
any mention of agency), and we do not apprehend
that this invalidates the document. Such writings
are obviously of a class different from deeds, notes?
etc., where a name can be legally subscribed as a rule
only by the party himself or by one fully authorized
so to do by power of attorney or other formal author-
ization.— Morton v. Solambo Co. 4 M. R. 463; Gore v.
McBrayer, 1 M. R. 645: Morrison v. Regan, 67 Pac.
955.
A Corporation May Locate.
This has been expressly decided in the cases of
McKinley v. Wheeler, 130 U. 8. 630, and Thomas 'v.
Chisholm, 13 Colo. 105. It is required only that it be
chartered under the laws of some federal State or
Territory. As to the citizenship of its stockholders,
see Doe v. Waterloo Co. 70 Fed. 463.
Minors.
The case of Thompson v. Spray, 72 Gal. 531, holds
that a minor child may make a valid mining loca-
tion.
Location Prevented by Colluding Co-Tenant.
If the staking and record are in fact not made
the claim never becomes perfected, although the rea-
58 DISCOVERY AND LOCATION.
son be that a co-owner violated his duty by colluding
with third parties and allowing them to take up the
ground. The sole remedy of the injured party is by
appropriate action against his co-owner, based on his
fraud. — Lockhart v. Wills, 54 Pac. 336.
Irregular Locations — Fractions.
• The contemplation of the law is that a lode claim
should be substantially a parallelogram. — Del Monte
case, 171 U. 8. 84. But it seems that with the limita-
tion that the length may not exceed 1,500 feet^nor the
width 600 feet a location may be made in any con-
venient shape, the only loss from such form of survey
being that no extralateral rights can be claimed
for a Survey which has not parallel end lines. Sur-
veys in the shape of a horse shoe and in the shape
of a triangle respectively were considered in the Stone
Lode case, 15 M. R. 641, and in Montana Co. v. Clark,
16 M. R. 80. In the North Star case, 83 Fed. 658, both
patents were of no conformable shape, but each of
them had issued on a consolidation of claims located
before 1872. "There is liberty of surface form under
the Act of 1872."— Walrath v. Champion Co. 171 U. 8.
312.
Where a fraction is found lying between older
Surveys it may be staked so as to make a claim in
the exact shape of the vacant ground or, it would
seem, under the authority of the Del Monte case,
supra, the claimant can set his corners on the older
claims and thus secure parallel end lines and the
extralateral rights which would be denied if he con-
fined himself to the lines proper of the fraction. A
wedge shaped fraction is valid for what clear ground
it covers. — Crown Point Co. v. Buck, 97 Fed. 462.
Locating Across the Strike.
The loss of extralateral rights by such location
is considered under APEX. In Walsh v. Mueller, 40
Pac. 292, location had been made, fraudulently, as
was alleged in the complaint, across instead of along
the strike. We can not see how fraud could be
STATUTORY REQUIREMENTS. 59
predicated upon such fact standing alone. It simply
loses the right to follow on the dip and the surface
beyond the proper distance from center of vein is open
to hostile location, as explained by diagram on p. 25.
Sunday.
In Union Co. v. Leitch, 64 Pac. 829, the first act
of location was done on a Sunday and in the subse-
quent contest no point was made on this fact.
TABLE OF STATUTORY REQUIREMENTS.
Indispensable Federal Requirements.
Whether required or not by State Statute or Dis-
trict Rules, the Federal Statute requires that the lo-
cation must be distinctly marked on the ground, so
that its boundaries can be readily traced, and the
location certificate must contain (1) the name or
names of the locators, (2) the date of the location
and (3) such a description of the claim or claims
located by reference to some natural object or perma-
nent monument as will identify the claim. — R. 8.
Sec. 2324.
Taking Colorado as a basis for the manner of
locating and recording lode claims, the difference in
the regulations of the other States and Territories
of the Pacific slope is noted in each paragraph num-
bered to correspond with the Colorado table below:
Before filing his location certificate the discov-
erer is required by Statute in
Colorado.
1. To place at the point of discovery, on the sur-
face, a notice containing the name of the lode, the
name of the locator and the date of the discovery.
2. Within sixty days from the discovery, to sink
a discovery shaft ten feet deep showing a well de-
fined crevice.
60 STATUTORY REQUIREMENTS.
3. To mark the surface boundaries by six posts,
one at each corner and one at the center of each
side line hewed or marked on the side or sides in
towards the claim.
4. The disclosure of the lode in an open cut,
cross-cut or tunnel suffices instead of the ten-foot
shaft.
5. Within three months from date of discovery
he must file a location certificate with the County
Recorder giving a proper description of the claim
and containing also the name of the lode, the name
of the locator, the date of the location, the number
of feet in length on each side of the center of the
discovery shaft and the general course of the lode.
Alaska.
On June 6, 1900, Congress passed an Act purport-
ing to be a full code of Statute Law for this Terri-
tory.—^ 8t. L. 321.
It leaves the status of mining titles the same as
in those States which have but few statutory regu-
lations.
It provides for three Recording Divisions and
these Divisions are to be subdivided into Recording
Districts, for each of which is provided a recorder.
The Clerk of the Court is ex officio recorder of
all that part of any Recording Division not set
off into recording districts.
Until the above District Recorders are appointed
the miners may appoint a recorder of any organ-
ized local mining district. — Sec. 16.
There is obvious confusion in these provisions,
but it seems evident that the office of the recorder
of the recording district is the place where records
are ultimately to be filed.
The Act allows ninety days after discovery for
the record, and while by its general terms necessarily
requiring a discovery and such marking of bounds
and description as are everywhere required by the
STATUTORY REQUIREMENTS. 61
terms of R. S. Sec. 2324, ante p. 27, it does not re-
quire a discovery shaft or any other special condi-
tion. Sections 15 and 26 of the act are printed under
the heading ALASKA.
Arizona.
1. Erect at point of discovery stone monument
three feet high, or a post four feet above ground, on
which, post notice containing same as Colorado, add-
ing length and width, distance from discovery to
each end, the general course and the locality of the
claim by reference to natural object or permanent
monument.
2. Within ninety days from time of location,
sink discovery shaft ten feet deep showing a lode,
deposit or mineral in place.
3. Within ninety days, mark boundaries by six
posts or stone monuments, same as Colorado; posts
must be four feet above ground; stone monuments
three feet high.
4. Same as Colorado; amount of work must be
equal to a shaft ten feet deep and four feet wide by
six feet long.
5. Within ninety days from time of location,
record with the County Recorder a copy of the lo-
cation notice posted.
California.
No statutory regulations. A Mining Code was
enacted in 1897, but repealed in 1899. The manner
of staking and other incidents of location are con-
trolled by district rules, and R. S. Sec. 2324. See p. 21.
These rules usually prescribe time for filing location
certificate, and by Sees. 1159 and 1169, Civil Code,
1901, a record with the County Recorder seems to be
required.
Idaho.
1. At time of discovery erect monument at place
of discovery showing a notice same as Colorado, add-
62 STATUTORY REQUIREMENTS.
ing distance claimed along vein each way from monu-
ment.
2. Within 60 days "after such location" sink dis-
covery shaft 10 feet deep and of not less than 16
square feet area.
3. Within 10 days after discovery mark bound-
aries by monuments at each corner and at each angle
in side lin^s, marked with name of claim and cor-
ner or angle it represents. Monuments must be 4
feet above ground; posts or trees must be 4 inches
square or diameter, and hewn and marked on side
facing discovery.
4. Any excavation which cuts the vein 10 feet
deep and measures 160 cubic feet in extent shall be
sufficient.
5. Within 90 days after location file with County
Recorder or Deputy Recorder of Mining District a
substantial copy of "notice of location" (see No. 6)
with affidavit of one of locators attached, that he is
a citizen of the United States or declared his inten-
tions; that he is acquainted with the ground claimed
and that no part has been. located, or if located, that
it has been abandoned by failure to perform labor,
and that he has done 10 feet of new work.
6. At the time of marking boundaries post at
discovery monument a notice of location containing
same as No. 5, Colorado, and adding distance on each
side of middle of vein, distance and direction from
discovery monument to natural object or permanent
monument and the name of Mining District, County
and State where claim is located.
Montana.
1. Same as Colorado, adding date of location,
the number of feet in width on each side of vein and
general course of lode.
2. Sixty days from date of posting sink shaft 10
feet deep showing well defined crevice or valuable
deposit.
STATUTORY REQUIREMENTS. 63
3. Thirty days to mark boundaries by tree, rock
in place, post or stone at each corner or angle of
claim, and marked to designate the corner. Posts
must be 4 inches square by 4 feet 6 inches long, one
foot in ground and mound of earth or stone 4 feet
in diameter and 2 feet high placed around the post.
If a stone, not a rock in place, is used, it must be 6
inches square by 18 inches long, set two-thirds its
length in the ground.
4. Same as Colorado.
5. Within 60 days from posting notice file with
Clerk of County a declaratory statement containing
same as Colorado and adding the width on each side
of vein, dimensions and location of discovery shaft
and location and description of each corner with the
markings thereon.
This statement must be verified by the locators,
showing that the location has been made in good
faith and that the matters therein stated are true.
Nevada.
1. Same as Colorado, adding length each way
from discovery, width on each side of vein, and gen-
eral course of lode.
2. Before expiration of 90 days from posting
sink shaft 10 feet deep to show a lode or deposit of
mineral in place.
3. Within 90 days mark boundaries by a tree
or rock in place or setting a post or stone same as
Colorado, and marked to designate the corner. Posts
must be 4 inches square by 4 feet 6 inches long, set
one foot in ground with mound of stone or earth,
4 feet in diameter and 2 feet high. If a stone, not
a rock in place, is used, it must be 6 inches square
by 18 inches long, set two-thirds its length in the
ground.
4. Same as Colorado. Amount of work must be
equal to a shaft 10 feet deep, 4 feet wide and 6 feet
long.
64 STATUTORY REQUIREMENTS.
5. Within 90 days from date of posting record
with Mining District Recorder and County Recorder,
a location certificate containing same as Colorado,
and adding width on each side of vein, dimensions
and location of discovery shaft, and location and de-
scription of each corner, with the markings thereon.
Recording with county recorder is required
whether there is a district recorder or not.
New Mexico.
1. Post in some conspicuous place on location a
notice in writing stating thereon the name of the
locator, his intention to locate the claim, and a de-
scription of the claim, by reference to permanent
monument.
2. Within 90 days from date of taking posses-
sion sink a discovery shaft to a depth of at least 10
feet, exposing mineral in place.
3. Mark surface boundaries by four substantial
posts or monuments set at each corner of the claim
so as to distinctly mark the claim on the ground
so that its boundaries can be readily traced.
4. Same as Colorado.
5. Within three months after posting notice
record a copy in the office of the Recorder of the
County.
North Dakota.
1. Same as Colorado, adding length on each
side of discovery and width on each side of lode.
2. Within 60 days from uncovering lode sink
discovery shaft sufficient depth to show well defined
mineral vein or lode.
3. Same as Colorado, adding two posts, one at
center of each end line, marking posts with name of
lode, and the corner, end or side of claim they re-
spectively represent.
4. Same as Colorado.
5. Within 60 days from date of discovery record
in office of Register of Deeds a location certificate
STATUTORY REQUIREMENTS. 65
containing same as Colorado, adding width claimed
on each side of vein.
Oregon.
1. Same as Colorado, adding length each way
from discovery, width on each side of lode, general
course of lode, and reference to natural object or
permanent monument.
2. Within 60 days from date of posting, sink
discovery shaft 10 feet to show a lode or vein of min-
eral deposit in place.
3. Within 30 days after posting, mark bound-
aries by six posts or mounds of earth and stone, one
at each corner and one at center ends of claim;
posts 3 feet above ground, 4 inches square or diame-
ter; mounds 2 feet high.
4. Same as Colorado, but open cut must be at
least 6 feet deep, 4 feet wide and 10 feet in length
along the lode.
5. Within 60 days after date of posting, record
with Recorder of conveyances, if there be one, other-
wise with Clerk of County, a copy of the notice
posted, attaching thereto an affidavit showing that
required location work was performed.
NOTE. — By Sec. 3829, Hill's A. L., only one claim, by
location, may be held upon each lead or vein, by the same
person ; the discoverer of any new lead or vein, not pre-
viously located upon, is allowed one additional claim.
South Dakota.
1. Same as Colorado, adding length on each
side of discovery and width on each side of lode.
2. Before filing location certificate sink shaft
10 feet deep to show a well defined mineral vein or
lode.
3. Same as Colorado, adding two posts, one at
center of each end line, marking posts with name of
lode and the corner, end or side of claim they respec-
tively represent.
4. Same as Colorado.
66 STATUTORY REQUIREMENTS.
5. Within 60 days from date of discovery, record
in office of Register of Deeds, a location certificate
containing same as Colorado, adding width claimed
on each side of vein.
On filing the location certificate, the Register
furnishes the locator with a certificate, and it, or a
copy, must be posted on the same post or tree where
the original notice is posted, and in a conspicuous
place. If not posted within 90 days from date of
original notice the claim is deemed abandoned.
Utah.
1. At time of making discovery erect a monu-
ment and place thereon a notice containing same as
Colorado, and adding length each way from discov-
ery, width -on each side of vein, general course of
lode and description with reference to natural object
or permanent monument.
2. Regulated by District Rules.
3. Claims must be distinctly marked on the
ground so that the boundaries can be readily traced.
Details of marking left to District Rules.
4. Regulated by District Rules.
5. Within 30 days from date of posting the loca-
tion notice, file for record in office of County Re-
corder, if claim be situate without and beyond
an original mining district, a substantial copy of the
notice of location.
NOTE. — The Acts of 1899, page 26, allow districts to
be organized, but provide that the nearest boundary line of
district shall not be within 10 miles of the office of any
County Recorder.
Also, that where location certificate is filed with Dis-
trict Mining Recorder, it must be filed in duplicate, which
duplicate the District Mining Recorder sends to the County
Recorder to be by him recorded.
Washington.
1. Post at the discovery, at the time of discov-
ery, a notice containing same as Colorado.
2. Within 90 days from date of discovery sink
shaft 10 feet deep. This requirement of shaft does
RECORD. 67
not apply to any mining claim located west of the
summit of the Cascade mountains.
3. Within 90 days mark boundaries by substan-
tial posts or stone monuments, bearing name of lode
and date of location, at each corner of claim. Posts
and monuments not less than 3 feet high; posts not
less than 4 inches in diameter. Brush must be cut
away and trees must be blazed along lines of claim.
4. Same as Colorado, except that cross-cuts are
not mentioned.
5. Within 90 days from date of discovery, re-
cord in office of the Auditor of County, a notice con-
taining same as Colorado (except no specific require-
ment that it contain name, of lode).
Wyoming.
1. Same as Colorado.
2. Within 60 days from date of discovery sink a
discovery shaft 10 feet deep.
3. Mark the surface by six substantial monu-
ments of stone or posts, placed and marked same as
Colorado.
4. Same as Colorado.
5. Within 60 days' from date of discovery record
with County Clerk a location certificate containing
same as Colorado, adding width on each side of dis-
covery shaft, and describing claim, if on surveyed
land, by such reference to section or quarter section
corners, as shall identify the claim beyond question.
RECORD.
Essentials of Location Certificate.
R. S. Sec. 2324. — * * * All records of mining-
claims hereafter made shall contain the name or names of
the locators, the date of the location, and such a descrip-
tion of the claim or claims located by reference to some
natural object or permanent monument as will identify the
claim. * * * — Sec. 5f A. C. May 1Q, 1872.
68 RECORD.
Colorado Statute — Time to File.
M. A. S. Sec. 3150. — The discoverer of a lode shall,
within three months from the date of discovery, record his
claim in the office of the recorder of the county in which
such lode is situated, by a location certificate which shall
contain :
First — The name of the lode.
Second — The name of the locator.
Third — The date of location.
Fourth — The number of feet in length claimed on each
side of the center of discovery shaft.
Fifth — The general course of the lode as near as may
be. — Feb. 1%, 181$.
Indefinite Record Void.
M. A. S. Sec. 3151. — Any location certificate of a lode
claim which shall not contain the name of the lode, the name
of the locator, the date of location, the number of lineal
feet claimed on each side of the discovery shaft, the gen-
eral course of the lode, and such description as shall iden-
tify the claim with reasonable certainty, shall be void. — Id.
Separate Record of Each Claim.
M. A. S. Sec. 3163. — No location certificate shall claim
more than one location, whether the location be made by
one or several locators. And if it purport to claim more than
one location it shall be absolutely void, except as to the
first location therein described, and if they are described
together, or so that it can not be told which location is first
described, the certificate shall be void as to all. — Id.
The Statutory Requirements essential to a loca-
tion certificate stated in section 3150 above printed
are followed by like statutes in all the mining States
and Territories, except California and Alaska. The
statutory requirements in the several States, in ad-
dition to those above noted, are tabulated, page 59.
Where no statutory requirements other than the
Federal Statute exist, a certificate following the form
below given (page 72) would in any State or Territory
fully comply with the requirements of the law.
Necessity for Record.
The Federal Statute does not in terms require a
record to be made, but the above quoted section 2324
presupposes record in some form or at least some
written publication of title, under state or district
law. To give public written notice of claim was an
RECORD. 69
'
almost universal custom before any U. S. mining act
was passed.
In the early periods this record was made in the
office of the district recorder and in some States this
custom prevails to the present time, but the general
statutory requirement is to make it in the office of
the county recorder.
The Time to Record the location certificate is
fixed by statute in Colorado within 3 months; North
and South Dakota and Wyoming, 60 days; Alaska
and Washington, 90 days from date of discovery;
Utah, within 30 days; Montana and Oregon, 60
days; Nevada, 90 days; New Mexico, 3 months from
date of posting notice;
Arizona and Idaho, within 90 days from date of
location;
In California no time is fixed by statute.
For proper office or offices in which to file the lo-
cation certificate, see Statutory Requirements tabu-
lated on page 59.
Where there is no organized mining district, and
therefore no district recorder, the certificate should
always be filed with the county recorder.
Recording Location Notice as Certificate.
It is a custom in California and in many local
districts elsewhere to make the location notice in du-
plicate, placing one on the claim and filing the other
for record. The same" is the statutory regulation in
Idaho, Arizona, Utah, Oregon and New Mexico. The
location certificate, or record, everywhere, must con-
tain all that is required of the notice besides giving a
full description which is not required of the notice.
If, therefore, the custom be to make these instruments
duplicates, each must contain what is required of the
greater and both would have to contain a full de-
scription with reference to monuments, to conform
to the Act of Congress. If not exact duplicates it is
not fatal.— Gird v. California Co. 60 Fed. 531; 17 M. R.
70 RECORD.
Location Notice, Without Record.
It seems undoubtedly true under the decisions,
that if the notice contains such full description and
no record is required by rule or statute, that none is
required by the Congressional act. — Souter v. Maguire,
21 Pac. 183; Thompson v. Spray, 14 Pac. 185; Haws v.
Victoria Co. 160 U. 8. 303. In such instance the notice,
containing the required reference to monuments,
makes the location complete without record. But to
go as far as the case of Poujade v. Ryan (NevJ, 33
Pac. 660, and hold that no record is required and that
the notice need not contain the Congressional de-
scription, seems to construe away the force and mean-
ing of the Act entirely.
Filing for Record is equivalent to record, and
subsequent errors or neglect of the officer can not
prejudice the locator. — Weese v. Barker, 7 Colo. 178;
Shepard v. Murphy, 58 Pac. 588.
The Record Follows the Location, as the location
follows the discovery. The record is a publication
of the location, and is therefore called the location
certificate. Many of the old forms of these certifi-
cates are not sufficiently specific, and the Surveyor-
General frequently requires a new record to be
made before issuing order of survey upon applica-
tion for patent.
The Certificate As Proof of the Acts of Location.
See EJECTMENT.
RECORD.
71
1
J
72 RECORD.
Description of Claim — Ties.
The record contains a description of the claim
as staked on the ground. If not properly staked, the
record does not make a good location; but if the loca-
tion has been properly made, the certificate can read-
ily be written so as to describe it fully, whether lo-
cated by a surveyor or otherwise. The essentials of
a valid location certificate are stated concisely in
sections 3150, 3151 and 3163 above printed, and a
form is given below.
The discovery shaft should always be treated as
an essential point of description, and tied to some
near and prominent monument, with course and dis-
tance therefrom, because it is a much more permanent
monument than any stake or corner.
In addition, one or more corners should be tied
to other "natural objects or permanent monuments,"
a government corner or discovery shaft of an ap-
proved survey being unobjectionable.
FORM OF LOCATION CERTIFICATE.
KNOW ALL MEN BY THESE PRESENTS, That I, Edmund
H. Lunken, of the City and County of Denver, State of Colo-
rado, claim by right of discovery and location, fifteen hun-
dred feet, linear and horizontal measurement, on the CAR-
DINAL LODE, along the vein thereof, with all its dips, varia-
tions and angles ; together with one hundred and fifty feet in
width on each side of the middle of said vein at the sur-
face; and all veins, lodes, ledges, deposits and surface ground
within the lines of said claim ; seven hundred and fifty feet
on said lode running north 88° east from the center of the
discovery shaft, and seven hundred and fifty feet running
south 88° west from said center of discovery shaft.
Said claim is situate on the eastern slope of Bull Hill
in Cripple Creek Mining District, County of Teller, State of
Colorado, and is hounded and described as follows, to wit :
Beginning at corner No. 1 (northwest corner of claim),
from ivhich deep shaft of Manning Lode bears N. 2° E. 70
feet and running thence 8. 2° E. 300 feet to corner No.
2; thence N. 88° E. 750 feet to south-center stake; thence
same course 750 feet to corner No. 3; thence N. 2° W. 3SO
feet to corner No. k (northeast corner), from which Hazed'
pine tree 2 feet in diameter marked "F," bears N. 8° W.
22 feet; thence 8. 88° W. 750 feet to north-center stake, and
thence same course 750 feet to the place of beginning.
RECORD. ^ 73
From discovery shaft; corner No. 2 of Neivman Lode,
survey lot No. 787, bears B. 45° E. 280 feet., and discovery
shaft of Wiseman Lode bears S. Jt5° W. 275 feet.
Date of discovery, January 2, 1903. Staked and lo-
cated February 2, 1903. Date of certificate, February 3,
1903. EDMUND H. LUNKEN.
ATTEST
W. E. SoRelle.
The above form corresponds in ties and courses
to the diagram on page 71.
Descriptive Defects in Location Certificate.
In addition to the cases cited on page 63 under
"LOCATION," there are certain other decisions in
particular requiring mention because of their ten-
dency to condone very vague records.
The most material of these cases, because de-
cided by the Court of highest authority, is that of
Hammer v. Garfield Co. 16 M. R. 125. There, the
opinion, after stating that "a reference to some nat-
ural object or permanent monument" is required,
says: "Of course the section means when such ref-
erence can be made." And it then proceeds to up-
hold a record whose only call or tie was "about fif-
teen hundred feet south of Vaughn's Little Jennie
Mine." The opinion further treats the claim's own
stakes as sufficient monuments. It was with refer-
ence to this case that HALLETT J. on objection being
made in the Circuit Court to an indefinite record,
overruled the objection with the observation "The
Supreme Court has repealed the Statute on this
point."
In Gamer v. Glenn, 20 Pac. 654, a "large bowlder
at the west end of the Tim lode" was the starting
point. This was the only monument. Adjoiners
were named, but it was proved that no such claim as
the "Tim" was known or existed. The record was
maintained. The test applied in this case was a fair
and reasonable one in its terms, to wit: it must be a
description which would enable a person of reason-
able intelligence to find the claim and trace its
74 ^RECORD.
boundaries. Cited and followed on very similar rec-
ord in Bramlett v. Flick, 57 Pac. 871.
Hanson v. Fletcher, 37 Pac. 480, decided in terms
that the claim's own corners were sufficient monu-
ments within the "Act, treating them as a complete
description without even referring to the attempted
tie to another mine about a mile distant. An equally
vague description was upheld on the same lines in
Credo Co. v. Highland Co. 95 Fed. 911. Both these
decisions cite and follow the Garfteld case, supra;
Farmington Co. v. Rhymney Co. 58 Pac. 832.
The statute requires the location to be "marked
on the ground" and also a "description by reference.''
This means and has always been considered to mean
a reference to an object or monument distinct from
its own stakes or corners, but the above citations go
far towards maintaining any record which bounds
itself by calling from corner to corner.
In Darger v. Le Sieur, 30 Pac. 363, and Brown v.
Levan, 46 Pac. 661, the location certificates were held
void for indefiniteness; while in Bennett v. Hark-
rader, 158 U. 8. 443, it was held that a location cer-
tificate with practically no description at all was
good. This last case can .not be safely depended on
as a precedent to be followed, as the Court proceed
to pass finally on the law by holding that an Act of
Congress of 1884, 23 Stat. L, 24, validated all claims
in Alaska prior to its date without regard to form,
if the claimants were in actual possession.
A description by the points of the mariner's com-
pass was maintained in Hayden v. Brown, 53 Pac.
490.
Rule of Construction.
Location certificates are of a class to which a lib-
eral, not a technical, rule of construction will be ap-
plied and any language which will be fair notice
to subsequent prospectors will make a sufficient de-
scription.— Fissure Co. v. Old Susan Co. €3 Pac. 587;
RECORD. 75
Morrison v. Regan, 67 Pac. 955; Wells v. Davis, 62
Pac. 3; McCann v. McMillan, Id. 31.
But Where the State Statute Requires a Descrip-
tion more specific than that implied from the A. C.
Sec. 2324, such requirements are mandatory and a
record calling only for its own corners is void. —
Purdum v. Laddin, 59 Pac. 153; the same as to any
such statutory requirements prescribing details of
location. — Copper Globe Co. v. Allman, 64. Pac. 1020.
Tying to Locating Monument.
In Idaho there must not only be a description
by reference to natural object or permanent monu-
ment, but such object must be tied both by course
and distance to the monument erected at the point
of discovery. — Clear Water Co. v. San Garde, 61 Pac.
137.
Surplusage — Misdescription.
The addition of statements not pertinent or ma-
terial does not vitiate the paper. — Preston v. Hunter,
67 Fed. 996. And where there is a false course or a
false tie, but after discarding the misleading clause
enough remains to fully identify the claim, the rec-
ord is valid. Or a mistake in course or distance may
be corrected by a call for a monument or some ob-
jective point. — Smith v. Newell, 86 Fed. 56. The
fact that the last call fails to close will not vitiate
a location certificate otherwise -regular. — Providence
Go. v. Burke, 57 Pac. 641.
Parol Proof to Connect the Paper With the Thing
Described — Ultimate Question of "Location
Proved" for the Jury.
Where the description is uncertain by reason
of latent defects — that is, where the record has suf-
ficient calls, but the Court can not tell from in-
spection whether such calls are natural objects or
permanent monuments — if the paper makes out a suf-
ficient description, conditioned that they be such ob-
jects or monuments, the certificate will be admitted,
76 RECORD.
leaving the jury to decide this as a question of fact.
— Upton v. Larkin, 15 M. R. 404; O'Donnell v. Glenn,
19 Pac. 302; Russell v. Chumasero, 15 M. R. 508. The
sufficiency of the location — that is, whether the facts
proved show a location complying with the law as the
Court gives them the law — is for the decision of the
jury. — Flavin v. Mattingly, 19 Pac. 384; Fissure Co.
v. Old Susan Co. 63 Pac. 587.
Whether certain monuments of a certain size
would mark the boundaries so that they could be
readily traced, is for the jury to say.— Taylor v.
Middleton, 15 M. R. 284.
The claimant may by parol, identify the objects
called for as permanent monuments. — Seidler v. Max-
field, 20 Pac. 794; Metcalf v. Prescott, 16 M. R. 137.
And a government corner is a, good call, although its
true position was seriously disputed. — Gird v. Cali-
fornia Co. 60 Fed. 531.
The Test of Sufficiency.
On the same line as the above case of Gamer v.
Glenn, and stating the converse of the proposition,
the party attacking the certificate may show that a
person could not find the premises, taking the loca-
tion certificate for a guide.— Dillon v. Bayliss, 27 Pac.
725.
Contradicting.
A location certificate regular on its face may be
shown by parol to be false in what it calls for. —
Dillon v. Bayliss, 27 Pac. 725. Its recited dates may
be proved not true. — Muldoon v. Brown, 59 Pac. 720.
The same case holds that the misdating must be
pleaded. But that is to require a party to plead his
evidence.
The locator is estopped to deny the validity of
his discovery or location as against his grantee. —
Blake v. Thome, 16 Pac. -270; McCarthy v. Speed, 80
N. W. 135.
RECORD. 77
Overlapping Stakes.
Where a fractional claim was located by stakes
all set on or near the lines of the surrounding claims,
the staking was upheld. — West Granite Co. v. Gran-
ite Co. 17 Pac. 547. And the same where through
locating in the night the stakes overset on the ad-
joiners. — Doe v. Tyley, 14 Pac. 375.
Immaterial Calls.
The statute does not require the certificate to
state the distance from the discovery shaft to the
side lines. — Quimby v. Boyd, 8 Colo. 194.
Wrong County.
Where the record is made in the right county
but a wrong county is called for in the description
the error is not fatal. — Metcalf v. Prescott, 16 M. R.
137. Like ruling where the record failed to name
county or State.— Talmadge v. St. John, 62 Pac. 79.
Verification.
A statute of Montana requires the location cer-
tificate, there called the Declaratory Statement, to be
verified by one of the locators or by an officer of any
corporation locating.- — Mattingly v. Leivisohn, 35 Pac.
111. The rulings on what it must contain have been
technical if not extreme. — McCowan v. McLay, 40
Pac. 602; Berg v. Koegel, Id. 605.
A like statute in Idaho requires the verification
to show that the locator is a citizen of the United
States; that no part of the ground claimed has been
located, or if located it has been abandoned or for-
feited, and that the locator has opened new ground
to the depth of ten feet. Oregon requires an affida-
vit showing that the required location work has been
performed.
Such requirements are legitimate subjects of state
legislation under R. S. Sec. 2322. — Van Buren v. Mc-
Kinley, 66 Pac. 936.
78 RECORD.
Priority of Record is so generally involved with
questions of priority of location and of continued
possession that this point has in most cases less
weight than is generally supposed. Record is the
inception of the written title, but the actual title
of a mining claim, properly followed up, reaches
back to the discovery.
But if a discovery be not followed by a location
and record within the time fixed by the statute, an
intervening record becomes the prior title. In other
words, the rights acquired by discovery are forfeited
by neglect to perfect the title by location and record;
and that title which if properly followed up would
have dated from discovery, will, if it be not so fol-
lowed up, be suspended in favor of any valid record
made after the expiration of a reasonable time, or
the period fixed by statute, and before any record of
such prior discovery.
Or a record filed before the statutory period has
expired, although based on a junior discovery, be-
comes the senior title the moment the time allowed
to the first discovery to complete its record has
elapsed without such record being consummated.
The same rule applies to any senior locator who
allows the time allowed for sinking his discovery
shaft, to expire before he has reached the required
depth and found the required crevice.
Actual Possession Without Valid Location or
Record.
The cases upon this point require careful ex-
amination to ascertain the distinctions made and
even after such examination manifest inconsistencies
appear.
One series of cases states that where a party is in
actual possession no stranger can invade such pos-
session in order to initiate an adverse title; in other
words, a prospector can not go upon the claim how-
ever invalid or defective, to sink a discovery, set up
a notice or plant stakes. — Phenix Co. v. Lawrence, 12
RECORD. 79
M. R. 261; North Noonday Co. v. Orient Co. 9 M. R.
524; Weese v. Bar Jeer, 7 Colo. 178; Craig v. Thompson,
10 Colo. 517; Rush v. French, 25 Pac. 816.
Certain of these cases hold that he may not in-
vade the actual workings then or lately occupied. —
Faxon v. Barnard, 9 M. R.-516. Others hold that he
may not enter within the lines of the claim. — Eilers
v. Boatman, 15 M. R. 462.
The above citations can be justified, within cer-
tain limits, on the principle of preserving the peace
on the public domain. But their logical result, if
taken without qualification, would be that a party in
possession could hold by his possession alone, in dis-
regard of all the requirements of the State Statute
and of the Acts of Congress.
On the other hand there are many decisions to
the effect that a party, after the lapse of the statutory
time to complete location and record, can not hold
against a claim later in discovery but which has been
the first to complete a valid location and record under
the Statute — that a miner can hold his claim only by
compliance with the regulations prescribed by the
owner of the fee (the United States) and the State
or district regulations which such owner has author-
ized.— McKinstry v. Claris, 4 Mont. 395; Noyes v.
Black, Id. 527; Hor swell v. Ruiz, 15 M. R. 488; Gar-
field Co. v. Hammer, 8 Pac. 153; O-leeson v. Martin
White Co. 9 M. R. 435; Sweet v. Webber, 7 Colo. 443;
Lalande v. McDonald, 13 Pac. 349; DuPrat v. James,
15 M. R. 341.
First Complete Location — One Party in Default.
The first In time to comply with all the require-
ments, after allowing to the one who takes the first
step to initiate a title his reasonable or his statutory
time to complete the same is the first in law.
If the first discoverer fail to sink his shaft
within the statutory period, or to stake or record
within the time fixed by law (or within a reasonable
time where there is no Statute), and a second party
80 RECORD.
makes a discovery while the first party is in default,
such second party has the statutory time to complete
his location and record and will hold the ground
against the original discoverer, although such orig-
inal discoverer perfects his location and record be-
fore the discovery of the second location is complete.
We think the language of the two preceding
paragraphs is justified by the language of the Su-
preme Court in Lockhart v. Johnson, 181 U. 8. 527, and
many other cases. — Copper Co. v. Allman, 64 Pac.
1020; Gregory v. Pershbaker, Id M. R. 602; Patterson
v. Hitchcock, 5 M. R. 542.
There is, however, one exceptional case wholly
discordant with this proposition — that of Omar v.
Soper, 15 M. R. 496. In this case the Golden Bell
lode was first discovered, put up its notice, sunk its
shaft in due time, but did not record until the three
months had expired. The Verde had made a discov-
ery during the sixty days allowed to sink the Golden
Bell shaft, making such discovery beyond the dis-
tance claimed by the Golden Bell notice. After the
three months allowed to the Golden Bell had expired,
and when the Golden Bell was in default but the
Verde within its time, the Verde made its survey —
by such survey taking up ground covered by the
Golden Bell notice. The court held that the Verde,
though its discovery shaft was sunk on clear ground,
was a title initiated by trespass and could not be
made the basis of a claim to survey over the Golden
Bell territory.
No exact rule can be laid down to meet every
variation in which the question could present itself,
but after conceding that a man's actual occupation of
his workings may not be invaded, and that a drift
would amount to such actual occupation of the vein
for the length of such drift upon the vein above and
below; and that an adverse entry would not be al-
lowed so near to, although not actually upon, the
workings of the prior party as to threaten to provoke
a breach of the peace — it would seem that after such
RECORD. . 81
concessions, the first party having made no record,
or no location certificate amounting to a valid record,
or having otherwise failed in any essential point
necessary to constitute a valid location, the ground
would be open to the location and record of a valid
claim thereon. — Lockhart v. Wills, 54 Pac. 336.
The Supreme Court of the United States says
"such location is a condition precedent to the grant.
Mere possession not based upon a valid location would
not prevent a valid location under the law." — Belk v.
Meagher, 1 M. R. 534.
Record Complete Before Adverse Rights Initiated.
Notwithstanding delay to record or delay to sink
discovery or to set stakes or to find a well-defined
crevice or to do any other essential act of location, it
has been repeatedly and in many forms held that if at
length the record or location be in fact perfected
before the hostile title had its inception, that the
title to such delayed but finally completed location is
perfect as against any later initiated title, and that
the last act of location relates back to and the title
begins from the original date of discovery. — McGinnis
v. Egbert, 15 M. R. 329; Preston v. Hunter, 67 Fed.
996.
All Parties in Default.
In the suit between the Green Mountain and the
Ontario it appeared that the Green Mountain was dis-
covered in August, 1877, and recorded in March, 1878.
The Ontario was discovered in February and recorded
in July, 1878. Each had exceeded the three months
allowed by law to record and the priority in title (as
to this point) was given to the first discovery. It
seems that it would have been otherwise if the On-
tario, although a later discovery, had completed its
record within the three months. — Faxon v. Barnard,
9 M. R. 515.
The Green Mountain had both first discovery and
first record, but with a long interval between. Dur-
ing its delay a second discovery had intervened, but
82 RECORD.
it also over-stepped the statutory time and so allowed
the Green Mountain to secure the first record. This
case has been lately approved in Lockhart v. Johnson,
181 U. 8. 527. We have always contended that where
all parties are in default in completing their location
and record within the statutory periods that the first
record based upon a valid discovery and location be-
comes a perfected title and takes the ground without
regard to priority of discovery. — Copper Co. v. All-
man, 64 Pac. 1020.
Possession During Locating Period.
The possession of the prospector during the pe-
riod allowed by law to complete his location and
record is protected, although he has so far no paper
title. — Erhardt v. Boaro, 15 M. R. 472; Marshall v.
Harney Peak Co. 47 N. W. 290. His location certifi-
cate when recorded relates back to the date of his
discovery.
And no party can intrude within his lines marked
out or within the ground which he has a right to
cover during that period — limited to 750 feet on each
end of his discovery, unless his location notice (page
38) fixes the number of feet claimed each way. — Bram-
lett v. Flick, 57 Pac. 869.
Possession Without Valid Location or Kecord
After Such Period Elapsed.
Possession, at all times, without regard to record,
location or even the fee simple, still gives a certain
title as against a mere trespasser, upon which eject-
ment and other actions may be maintained. — Camp-
bell v. Uankin, 12 M. R. 257; Hawxhurst v. Lander,
Id. 214; Haios v. Victoria Co. 160 U. 8. 303. Long con-
tinued possession presumes ownership. — Risch v.
Wiseman, 59 Pac. 1111. But as we have already inti-
mated, such right by possession yields place at once
to right by title, when such title is offered and
proved. — Wilson v. Triumph Co. 56 Pac. 301. It re-
quires location to give the right of possession. — Jor-
dan v. Duke, 36 Pac. 896. See "EJECTMENT."
RKCORD. 83
Possession is a title only by sufferance in default
of something better — it is the starting point, not the
goal of title — and will not prevail against the fee
simple; Gourchaine v. Bullion Co. 12 M. R. 235; or
against a title perfected under the district rules;
English v. Johnson, Id. 202; or against a complete
location and record made in compliance with the law.
— Sears v. Taylor, 5 M. R. 318. Where neither party
perfects a valid location the first in possession has the
better right. — Neuebaumer v. Woodman, 26 Pac. 900.
Trespass — Force — Fraud.
No right can be initiated on government land
by force or clandestine entry upon the actual posses-
sion of another, whether the location of such other
be valid or invalid. — Nevada Co. v. Home Co. 98 Fed.
674- Title to a mining claim cannot be initiated by
an entry upon a prior valid existing location.— Kirk
v. Meldrum, 65 Pac. 634- But the possession of the
first occupant, where he has no valid location, does
not prevent an entry by a later party intending to
make a location. — Thallmann v. Thomas, 111 Fed. 277.
Defective Record Aided by Possession.
In Eaton v. Norris, 63 Pac. 856, the Court consid-
ered both the fact of continued possession and the
fact that the intruders had admitted knowledge of
the prior claim — as matters of evidence to aid the
older title. These dicta were wholly unnecessary to
the decision, as the prior locators had substantial
proof of location without these incidents. In Tal-
madge v. St. John, 62 Pac. 79, a description calling
only for its own corners was held valid by the aid of
such possession. But in Brown v. Oregon Co. 110 Fed.
728, it is held in terms that if the prior location is
not valid the later comer may locate though with full
notice of the prior asserted claim.
In general terms, the first who complies with the
law in completing his location is the first in right
and this complaisant recognition of priority on the
ground, and of void notices, as tending to raise a
84 ABANDONMENT.
supposed equity, is simply judicial weakness, leading
only to uncertainty and injustice. The Oregon Co.
case boldly states the law as it shoitld be stated. As
between two prospectors, the fact that one is the
first comer or the fact that the second knew that the
first was on the ground before him, does not weaken
the rights of the second comer if he be the first to
comply with the law — the common protector of the
rights of both. < / ! i-
Extensions. j -; ;^|
The paragraph from section 2320, quoted on
page 27, of itself disposes of all "extensions" and
side claims, unless they be of themselves, howsoever
named, independent discoveries and locations. "Ex-
tension" is a word often added to the name proper
of a location staked off to the right or left of some
developed vein, suggestive of the hope, if not the
fact, that the new location is planted on the same
ore body on its strike.
Lode Location Held (rood as Placer,
Where a party had located a claim, not describ-
ing it as a lode, but of the length and width of a lode
claim upon a deposit usually classed as placer, the
Court held that placers and lodes are taken up by
substantially the same procedure and that if what
was done made it a valid mining location it would be
sustained as a placer. — McCann v. McMillan, 62
Pac. 31.
ABANDONMENT.
District and Territorial Regulations.
The district regulations in early years often de-
clared what acts or omissions should amount to an
abandonment. Failure to represent or work for a
single season or even for a very limited period was
usually sufficient cause. As a camp became more or
ABANDONMENT. 85
less deserted the miners about to leave frequently
met and passed resolutions to the other extreme —
that all claims should remain valid without any work
or representation.
Where the district organizations are still pre-
served a rule covering or attempting to cover this
point may remain valid and enforceable except that
a rule requiring less than $100 annual labor would
be an infringement upon the Congressional Act. —
Original Co. v. Winthrop Co. 60 Cal. 631; Northmore
v. Simmons, 97 Fed. 386.
The legislatures have not attempted the danger-
ous matter of defining in terms what amounts to
abandonment. The circumstances surrounding each
particular case vary too much to make a sweeping
rule in all instances fair.
Confined to Possessory Titles — Associated With
Annual Labor.
Although the title to mining claims has been at
all times of that class which might be lost by aban-
donment (Ferris v. Coover, 10 Cal. 631), and although
a technical abandonment may at this day be proved
with regard to any sort of possessory title, the sub-
ject has lost much of its importance except in con-
nection with the annual labor acts.
A Question of Fact and Intention.
Abandonment is a question of fact, and the fact
is to be found from the intention. — Myers v. Spooner,
9 M. R. 519; Taylor v. Middleton, 15 M. R. 284; Mal-
lett v. Uncle Sam Co. 1 M. R. 17 ; Oreamuno v. Uncle
Sam Co. Id. 32; Marshall v. Barney Peak Co. 4? A7-
W. Rep. 290. It is a question of fact for the jury. —
Aye v. Philadelphia Co. 44 Atl. 555. Desertion and
abandonment are equivalent terms. — Derry v. Ross,
1 M. R. 1.
Abandonment being thus a matter of intention,
it follows that even after doing his work if the miner
should deliberately quit his claim with expression of
his intention to never return to it, or give permission
86 ABANDONMENT.
to others to occupy it as their own, such manifest
proof of intent would establish abandonment; but
for all practical purposes the performance of the
annual labor is the test, and the law of annual labor
involves no question of intent.— Depuy v. Williams,
5 M. R. 251; Doherty v. Morris, 11 Colo. 12.
Ceasing to work because ore not salable is no
abandonment. — Hosford v. Metcalf, 84 N. W. 1054.
In McCann v. McMillan, 62 Pac. 31, parties who
had expressed their intention to abandon and begun
to re-locate for a third party were allowed to recall
their intention and were held to have not abandoned.
A father failed to do the work in 1890. His son
re-located in 1891 and afterwards conveyed to the
father. The location of 1891 was defective. In a
suit by the owner of a later location, Held; that de-
fendant, the father, could not recall his abandon-
ment and rely on his original title.— Niles v. Kennan,
62 Pac. 360.
Quitting to Lure.
Such a thing as a conditional abandonment can
not be recognized. Where the owner allows strangers
to hold a claim under color of title, standing by and
intending to resume work only in case its develop-
ment shows pay, his action amounts to abandon-
ment.— Trevaskis v. Peard, 44 Pac. 2JjS.
How Proved.
Lapse of time, though not conclusive, is an in-
cident tending to prove abandonment. — Mallett v.
Uncle Sam Co. 1 M. R. 17; Beaver Co. v. St. Vrain
Co. 6 Colo. App. 130. Leaving tools in the mine tends
to disprove it. — Harkness v. Burton, 9 M. R. 318.
Proof that a stranger had relocated ground as aban-
doned does not prove that it was in such condition. —
McGinnis v. Egbert, 15 M. R. 329. Abandonment is
not presumed and is to be proved by the party that
asserts it. — Johnson v. Young, 18 Colo. 625; Nichols
v. Mclntosh, 19 Colo. 22.
ABANDONMENT. 87
Of Prospect Before Kecord.
Where a discoverer by conduct shows an intent
to quit and not perfect his location begun, the claim
is abandoned and strangers need not await the ex-
piration of the prospector's time before locating. —
Kinney v. Fleming, 56 Pac. 122.
Ditches and Water.
Failure to use water and allowing ditch to go to
decay are evidence tending to prove abandonment. —
Dorr v. Hammond, 7 Colo. 79; Sieber v. Frink, 7
Colo. 149. But non-user alone does not of itself
necessarily imply abandonment. — Welch v. Garrett,
51 Pac. 405; Integral Co. v. Altoona Co. 75 Fed. 379;
N. A. Co. v. Adams, 104 Fed. 404. A ditch may be
abandoned without abandonment of the owner's wa-
ter rights.— Nichols v. Mclntosh, 19 Colo. 22.
Other Subjects of Abandonment.
A leasehold interest, water, slag and tailings, are
things which may be lost by abandonment. — Glasgow
v. Chartiers Co. 25 Atl. 232; Barker v. Dale, 8 M.
R. 597; Dougherty v. Creary, 1 M. R. 35; McGoon v.
AnJceny, Id. 9; Porter v. Noyes, 10 N. W. 77. A pros-
pecting contract may be abandoned. — Chadbourne v.
Davis, 15 M. R. 620; McLaughlin v. Thompson, 2
Colo. App. 135. And failure to supply his outfit to
the prospector will justify abandonment. — Murley v.
Ennis, 12 M. R. 360.
Pleading.
It has been ruled that abandonment need not be
specially pleaded. — Bell v. Bed Rock Co. 1 M. R. 45;
Willson v. Cleaveland, 30 Cal. 192. But it is no issue
when not raised by either pleadings or proof. — Cole-
man v. Davis, 13 Colo. 98. Where the abandonment
is by reason of failure to (Jo annual labor, the deci-
sions have generally required a special plea and it is
hard to draw a tenable distinction between them.
88 ANNUAL. LABOR.
The current of authority is that abandonment
must be specially pleaded. — Hector Co. v. Valley View
Co. 64 Pac. 20.5.— See p. 102.
Outstanding Abandoned Title.
The fact that there may have been locations now
abandoned and not claimed by either party renders
such outstanding titles of no relevancy to the rights
of either. — Craig v. Thompson, 10 Colo. 511.
ANNUAL LABOR,
Annual Expenditure.
R. S. Sec. 2324. * * * — On each claim located
after the tenth day of May, eighteen hundred and seventy-
two, and until a patent has been issued therefor, not less
than one hundred dollars' worth of labor shall be per-
formed or improvements made during each year. On all
claims located prior to the tenth day of May, eighteen hun-
dred and seventy-two, ten dollars' worth of labor shall be per-
formed or improvements made by the *first day of January,,
eighteen hundred and- seventy-five, and each year thereafter,
for each one hundred feet in length along the vein until a
patent has been issued therefor ; but where such claims
are held in common, such expenditure may be made upon
any one claim ; and upon a failure to comply with these
conditions, the claim or mine upon which such failure oc-
curred shall be open to relocation in the same manner as
if no location of the same had ever been made, provided
that the original locators, their heirs, assigns, or legal
representatives, have not resumed work upon the claim
after failure and before such location. * * * — Sec 5, A.
C. May 10, 1872.
Amendment of 1880, Adopting the Calendar Year.
Sec. 2. — That section twenty-three hundred and
twenty-four of the Revised Statutes of the United States be
amended by adding the following words : "Provided, That
the period within which the work required to be done an-
nually on all unpatented mineral claims shall commence on
*In the Revised Statutes the date printed is June 10,
1874, the compilers having overlooked the second Act ex-
tending the time, approved June 6, 1874. — 18 Stat. L., part
S, page 61.
ANNUAL LABOR. 89
the first day of January succeeding the date of location of
such claim, and this section shall apply to all claims located
since the tenth day of May, anno Domini eighteen hun-
dred and seventy-two." — Approved Jan. 22, 1880.
Not Required by Statute Before 1872.
Annual labor was not required by either Legisla-
tive or Congressional law until after the passage of
the A. C., May 10, 1872.
Often Required by District Rules.
By some of these rules a man was bound to do
some work upon his claim every week, or every
month, but these rules in most sections had fallen
into disuse at the time of the passage of the Act re-
ferred to. Their provisions both as to amount re-
quired and the period in which to perform are largely
if not entirely superseded by the terms of the Con-
gressional Act. — See p. 7.
The idea of annual or periodical labor is not
new; it was a part of the Spanish system, and gen-
erally prevailed on the Pacific slope.
The A. C. May 10, 1872, divided lodes into two
classes with respect to labor:
First — Lodes located before its passage.
Second— Lodes located after its passage.
Claims located Before May 10, 1872.
The amount of labor required on all lodes was
$10 for each hundred feet, but where claims were
held in common, the whole amount of work might
be done on one claim. The time for the first work
on old lodes was originally fixed to expire May 10,
1873, i. e., one year after the passage of the Act. It
was further extended to June 10, 1874, and finally
postponed to January 1, 1875. — Thompson v. Jacobs,
2 Pac. 714.
The Act of 1880 made no change either in the
amount or time of annual labor on old claims. It has
always been and still is, $10 for each 100 feet during
each year of our Lord, beginning January 1, 1875;
and the time between May 10, 1872, and January 1,
90 ANNUAL LABOR.
1875, constituted the period for the first required
labor.
Where the lode consists of undivided claims of
100 or 200 feet each, as in the case of most locations
made before May 10, 1872, any one or more claims
may be saved by the expenditure of $10 worth of la-
bor to each 100 feet which the owner desires to segre-
gate and hold, leaving the remainder to forfeiture;
or when the series of claims are held in common,
the full amount may be expended on any one claim,
whether they were originally recorded as joint or as
several locations; but in all cases where less than
the amount required to hold the entire lode is ex-
pended, the owner, in his proof of labor, should state
the work as done for the purpose of holding pnly so
many feet, designating where they lie upon the lode.
But few claims remain subject to this law. Dur-
ing the lapse of time, now more than thirty years,
they have been either abandoned or passed on to
patent or have been re-located under the Act of 1872.
When so relocated they would be governed by the
terms of the next subdivision.
Claims Located Since May 10, 1872.
The various extensions of time for «work on old
lodes did not apply to the new lodes. The period for
the first work was never extended, nor has any
change been made except the Act of 1880. Under
the original Act the annual period for labor on
claims located after its date, May 10, 1872, began on
the date of location, and this date was hard to fix
with exactness. It might have been the date of dis-
covery, or any date intermediate between discovery
and record. The Act of 1880 makes the annual period
now coincide with that fixed for old claims, to wit:
each calendar year.
Each Claim An Entirety — Work on Subdivided
Claim.
The 1,500-foot lodes being single claims of that
length and a certain amount of work being required
ANNUAL, LABOR. 91
upon the claim and the clause as to "each 100 feet in
length along the vein" not applying to these new loca-
tions, it does not seem that a party, by expending
any portion of the full amount, can save any frac-
tional portion of his lode. But if a party own a
segregated portion of such claim: Is he required to
do the full amount essential to hold a claim, in case
the other owners refuse to contribute?
It seems he is under this necessity, and each
interested party must see for himself that the
amount required to hold the claim is done by some
person, and if the whole burden falls upon one party,
the rest of the claim becomes forfeit to such party.
There is no distinction made between those who own
separate feet and those who own undivided interests
in the claim.
The word "co-owners," used in the Act, does not
appear to be used in its ordinary acceptation, as ten-
ants in common, but to include all the owners, either
in common or after they have segregated their inter-
ests; the claim seems to be treated as an individual
item so far as the relations between the Government
and the miner are concerned; if, therefore, all the
labor is performed by the owner of the east end,
he may claim forfeit of the west end; or if it is all
performed by the owner of an undivided half, he
is in position to become the sole owner by proper
notice under the forfeiture clause upon refusal of
the other co-tenant to contribute his proportion. But
this is only the apparent reading of the Act as to
claims which have been segregated into several parts,
and would give a benefit to a party who had no more
connection with the other end of the claim than a
mere stranger. Consequently this can only be treated
as a suggestion of the true construction of an Act
which is so worded as to be entirely ambiguous on
this point.
The above paragraph is from the Fifth edition
of this book in 1881, but we have seen no decision
92 ANNUAL, LABOR.
nor found any reason to since change it as the true
construction of the Act.
$500 Work Already Done.
The fact that sufficient improvement ($500
worth) has been done to authorize application for
patent, does not dispense with the necessity for the
annual expenditure.
Pending Application for Patent, until entry, the
work must be kept up. — South End Co. v. Tinney,
35 Pac. 89. Where an applicant after publication
delays entry and neglects his annual labor the
ground is open to relocation. — Gillis v. Doiv-
ney, 85 Fed. 483. But see on this point, p. 451.
Annual Labor After Entry.
It has been decided that annual labor cannot be
required after entry in the Land Office, although the
patent has not yet been formally issued; and such
decision is clearly correct, because the patent, when
it issues, relates back to the date of entry, and so
satisfies the wording of the Act, which requires the
annual labor each year "until patented." — Alta Co.
v. Benson Co. 16 Pac. 565; 145 U. 8. 428; Aurora Hill
Co. v. 85 Co. 15 R. M. 581; L. 0. Reg. 14; 26 L. D. 196:
27 Id. 396; 31 Id. 87. A relocation cannot be made
on entered lands so long as the entry stands. — Neil-
son v. Champaigne Co. Ill Fed. 655; Benson Co. v.
Alta Co. 145 U. 8. 428. Nevertheless, in such case, a
party runs the risk of the consequences in case his
receiver's receipt should be canceled. — Swigart v.
Walker, 30 Pac. 162. In Murray v. Polglase, 59 Pac.
440, the Receiver's receipt had been set aside for
fraud, the annual labor not kept up and there had
been a relocation. Held that the claim was lost to
the entryman.
Time During Which Labor Must Be Completed.
On all lodes located before or since May 10, 1872,
the year for doing the labor is each year of our Lord,
beginning January 1st, and ending December 31st,
ANNUAL LABOR. 93
always noting that since the Act of 1880 no annual
labor is required during the year the location is
made. — Hall v. Hale, 8 Colo. 351; McGinnis v. Egbert,
15 M. R. 329. But a district rule or Statute may im-
pose conditions which imply expenditure during the
location year. — Northmore v. Simmons, 97 Fed. 387.
Each Annual Period An Entirety.
The owner has the whole of each year to do his
$100 worth of work or make his $100 worth of im-
provements.— BelJc v. Meagher, I M. R. 522; Atkins v.
Hendree, 2 M. R. 328; Mills v. Fletcher, 34 Pac. 637.
It therefore follows that if, for instance, he has
expended $100 during the first m'onth of the first year
he may wait until the twelfth month of the second
year before he does his second year's work. That
such is the law admits of no doubt upon the reading
of the Act. At the same time the disposition to take
advantage of this fact leads to delays which often
ultimate in allowing the whole time to pass by and
the claim to become liable to relocation.
What Counts for Improvements.
Any work done for the purpose of discovering
minerals is improvements within the spirit of the
statute. — U. 8. v. Iron-Silver Co. 24 Fed. 568. Road
building counted as annual labor. — Doherty v. Mor-
ris, 28 Pao. 85; Mt. Diablo Co. v. Callison, 9 M. R. 616.
Flumes, drains or the turning of a stream or the
sinking of a common shaft will count. — St. Louis Co.
v. Kemp, 11 M. R. 692.
Watchman.
Where a mine is idle, the time and labor of a
watchman or custodian may be treated as annual
labor. — Lockhart v. Rollins, 16 M. R. 16; Altoona Co.
v. Integral Co. 45 Pac. 1047; Tripp v. Dunphy, 28
L. D. 14.
94 ANNUAL LABOR.
What Will Not Count.
A house for the use of the miners built 200
feet away from the claim cannot be. considered
as annual labor. — Remmington v. Bandit, 9 Pac. 819.
The expense of taking timbers, lumber, bucket,
rope and tools to the mine — all carried away after
slight use, if used at all — will not avail for annual
labor.— Honaker v. Martin, 27 Pac. 397.
Dumping tailings on a claim is no improve-
ment.— Jackson v. Roby, 109 U. S. 440. Traveling
and expenses in getting ready to go to work cannot
be considered. — McGarrity v. Byington, 2 M. R. 311;
DuPrat v. James, 15 \ M. R. 341. Nor work done by
third parties and bought in. — Little Gunnell Go. v.
Kimber, 1 M. R. 536.
Taking specimens for assays will not count for
annual labor nor as a legitimate resumption of
work. — Bishop v. Baisley, 41 Pac. 936.
Work Done Outside of Claim or on Group.
Work done beyond the lines will count when
it has direct reference to the drainage or develop-
ment of the claim. — Packer v. Heaton, 4 M. R. 447;
Kramer v. Settle, 9 M. R. 561; Mt. Diablo Go. v. Gal-
lison, Id. 616; Klopenstine v. Hays, 57 Pac. 712; 17
L. D. 190. Whether the work done on one is really
for the benefit of the group is for the jury to say. —
Wilson v. Triumph Go. 56 Pac. 300; Yreka Go. v.
Knight, 65 Pac. 1092. Where sundry claims are
worked together as one group, the development work
though confined to a single claim, may count for
all. — Chambers v. Harrington, 111 U. S. 350; Jupi-
ter Go. v. Bodie Go. 4 M. R. 413; St. Louis Go. v.
Kemp, 11 M. R. 692; DeNoon v. Morrision, 16 M. R.
33; 23 L. D. 267.
The claims must be contiguous to allow work
done on one to count for another. — Gird v. Califor-
nia Oil Go. 60 Fed. 531; 17 M. R. ; Royston v.
Miller, 76 Fed. 50.
ANNUAL LABOR. 95
The work may be done on an adjoining pat-
ented claim but when done outside the bounds of
the claim intended to be protected, the burden of
proof is on the party asserting that it was for the
benefit of such claim and was done as annual labor
for the protection of such claim. — Hall v. Kearny,
18 Colo. 505; 17 M. R. ... ; Sherlock v. Leighton, 63
Pac. 580
Diverse Ownerships in Group or in Tunnel.
Work done by tunnel intended to cut two claims
owned by the same person is good to hold both. —
Book v. Justice Co. 58 Fed. 101. Work done on one
of a group held in different names but really owned
in common has been ruled to avail for all. — Eberle
v. Carmichael, 42 Pac. 95. And we see no reason
why a tunnel owned in common and worked by the
joint labor or contributions of the several owners
of different claims intended to be cut by such tun-
nel should not avail to protect each claim provided
the full $100 is expended for each claim. — Fissure
Co. v. Old Susan Co. 63 Pac. 587.
Annual Labor by Tunnel.
See TUNNEL SITES.
Amount, How Estimated — District Rules.
As to such district rules as attempt to fix the
value of a day's labor above its real cost in esti-
mating the amount of work done, they amount to
absolutely nothing. The "fiat" does not alter the
"fact." The true measure is the real expenditure. —
Wright v. Killian, 64 Pac. 98; Penn v. Old-
hauler 61 Pac. 649; Woody v. Barnard, 65
S. W. 100. And if the work has been done, or
the materials furnished by the owner himself, the
measure of value is what it would have cost to
procure the same labor and materials from a sec-
ond party. In other words, the market value of
the labor and materials. — Quim'by v$. Boyd, 8 Colo.
194, 342. And its enhancing the value of the claim
is no test. — Mattingly v. Lewisohn, 35 Pac. 111.
96 ANNUAL, LABOR.
The Fact That the Work Has Not Yet Been Paid
for does not invalidate its sufficiency to count
as annual labor. — Lockhart v. Rollins, 16 M. R. 16;
Coleman v. Curtis, 30 Pac. 266.
Rightful Owner Out of Possession.
Where possession is wrongfully taken and with-
held, the rightful owner is excused from the neces-
sity of doing the work. — Utah Co. v. Dickert Co. 21
Pac. 1002; Slavonian Co. v. Perasich, 1 M. R. 541;
Mills v. Fletcher, 34 Pac. 637; Trevaskis v. Pear a,
44 Pac. 246.
Performance of Annual Labor After the Year Has
Expired — Two Parties Essential to Forfeiture.
The neglect to do the annual labor required by
the United States government by no means works
a forfeiture of the claim. — Lakin v. Sierra Buttes Co.
25 Fed. 343; Lacey v. Woodward, 25 Pac. 785. To
illustrate: If a lode was located in 1890 and after
that year no annual work was done until 1896
(when a period of five full years would have in-
tervened), and in 1896 the owner enters and per-
forms his $100 worth of work for that year, he con-
tinues to be the owner of the claim, and his title
relates back to the original location of 1890; pro-
vided always, that the lode has not been relocated
in the meantime.
It requires two parties to make a forfeiture ab-
solute: First, the party who abandons, and sec-
ond, the party who relocates. The second party
therefore must take advantage of the first party's
default before such default can enure to the sec-
ond party's benefit. — Little Gunnell Co. v. Kimber,
1 M. R. 536; Beals v. Cone, 62 Pac. 948.
The fact that failure to do the work does not
ipso facto work a forfeiture and the fact that ad-
vantage of the default must be taken by some ad-
verse party is important in several classes of cases.
First — Where the work done before the neglect,
is necessary to complete the $500 worth of improve-
ments required before patenting.
ANNUAL LABOR. 97
Second — Where in cases of ejectment between
two claims it is necessary to prove priority and
carry the title back to the original location.
Third — Where a party has neglected to do his
annual work and a third party has entered for pur-
pose of relocation.
Fourth — The fact that neglect to do one or more
years' labor does not, ipso facto, operate as a for-
feiture, is of special importance in the case of over-
lapping claims, ;where the junior claim has been
worked and the senior claim has not been worked.
1. Where the Work Done Before the Neglect, is
necessary to complete the $500 worth of im-
provements required before patenting. If failure to
do one year's work operates, ipso facto, to defeat the
location, in such case the title would have to date
from the date of resumption; in fact, a new location
would have to be made by the owner. But the failure
not having been in due time taken advantage of, the
old title remains, dates from original discovery, and
consequently old work and new count together as
improvements on the claim for purposes of patenting.
2. Where It is Essential to Carry the Title Back
to Discovery.
The remarks of the foregoing paragraph apply
also to this heading. The doctrine of relation car-
ries a title back to the first step in its inception,
always excepting where an adverse right has inter-
vened. As the failure of itself works no forfeiture,
the continuity in this case is not broken. A loca-
tion, however, made over a claim where the work
has not been done (before bona fide resumption by
the owner) would break this continuity and would
take the conflict, whether it purported to be a re-
location of the defaulting claim or only incidentally
took some of its ground.
There is a dictum in Klopenstine v. Hays, 51
Pac. 712, that if work is resumed by the original
owner after failure to do work for a certain year
98 ANNUAL LABOR.
and after a valid relocation by a second party who
also failed to keep up his work, that such resump-
tion by the original owner revives the original title.
It may be that in such circumstance the original
owner may not be required to go through the form
of a new location and record; but that his title
would go back by relation beyond the point of time
when a valid possessory title to the same ground
existed in a third party is an extremely doubtful
proposition.
3. Where a Third Party Has Entered for Pur-
pose of Relocation.
The words of the Act relative to the latter class
of cases are as follows:
"Provided that the original locators, their heirs, as-
signs, or legal representatives, have not resumed work upon
the claim after failure and before such location."
If this location of the third party is complete be-
fore the re-entry of the original owner, of course the
original owner is too late. If, on the other hand, the
original owner has bona fide resumed work before
the attempted location over his ground, his original
title becomes revested the moment he has completed
an amount of work equivalent to that required for
the previous year. But where the third party has
entered, and before he completes his location, the
original owner also enters and resumes work, the
question remains: Is such re-entry of the owner suf-
ficient to defeat the intervening claimant? The Act
says that the owner may resume work at any time
"before such location." The location of the inter-
venor is not complete until he has done a series of
acts, usually requiring several days to consummate.
The locator must sink a shaft ten feet in depth, and
set his stakes. In the meantime has the original
owner the right to resume work? It was so decided
in the case of Pharis v. Muldoon, 15 M. R. 348. There,
however, the relocator had entered and posted his no-
tice just after midnight of the last day of the year
ANNUAL, LABOR. 99
and the original owner resumed work by the usual
hour for honest labor on the morning of the first.
The relocator had barely a technical case, if any.
In another instance, on facts much stronger for the
second party (G-onu v. Russell, 12 M. R. 630), it was
distinctly held that the re-entry of the original
owner before the newcomer's location was complete,
would save the forfeiture. The same court reaffirms
this ruling in McKay v. McDougall, 64 Pac. 669.
On the contrary, HALLETT, J., in the case of Lit-
tle Gunnell Co. v. Kimber, 1 M. R. 536, held that the
party attempting to take up abandoned property has
the same period of three months to complete his lo-
cation, which is allowed by law to a discoverer; and
Pelican Go. v. Snodgrass, 9 Colo. 339, is to the same
effect.
I have 'little doubt of the correctness of the lat-
ter opinion. "The condition of development should
be attached to every mine; and courts should, as far
as consistent with legal principles, maintain the con-
struction of mining customs which accomplish this
end." — King v. Edwards, 4 M. R. 480; Russell v.
Brosseau, 65 Cal. 605.
In Belcher Co. v. Deferrari, 62 Cal. 160, the plain-
tiff, the original owner, did only one-half the re-
quired amount in 1880. In January, 1881, he did $24
worth of work on two claims. Defendant relocated
in August, 1881. Held, that the plaintiff had resumed
work and was entitled to recover. Such a decision
is only trifling with the law and the rights of parties
based on the law. On a case of like facts the con-
trary has since been held by the same court. — Mc-
CormicTc v. Baldwin, 37 Pac. 903.
In the well considered opinion in HonaTcer v.
Martin (Mont), 27 Pac. 397, the cases on this subject
are reviewed by BLAKE, C. J., and it was decided that
where a resumption takes place it must be substan-
tial, and result in the prompt performance of at least
the full amount which should have been done the
100 ANNUAL, LABOR.
previous year. It does not decide in terms as in the
Pelican case and Gunnell case, that the resumption is
too late when the first act of relocation has been
initiated, but it bears out the argument to the same
result.
The owners of the Nellie were on the ground
December 31, and resumed work on January 1. The
same day the Equator was located over this ground.
The Court held that such location could not be in-
itiated while the ground still remained unforfeited,
the owners having renewed the work, though they
afterwards failed to complete the full assessment—
Jordan v. Duke, 53 Pac. 191.
Sharpening tools off the claim does not count for
work: Labor when resumed must be prosecuted with
reasonable diligence till the $100 is complete.—
Hirschler v. McKendricJcs, 40 Pac. 290.
4. Work Neglected on Senior Claim Overlapped
by Junior Claim.
This does not transfer the title of the overlap-
ping portion from the senior to the junior claim, un-
less the junior lode makes its relocation, taking up
the overlapping ground. This it may do in Colorado
as specially provided in M. A. S. Sec. 3160 by the
clause:
"If at any time the locator of any mining claim
* * * * shall be desirous * * * of taking in any
part of an over-lapping claim which has been abandoned,
* * * such locator, or his assigns, may file an additional
certificate" * * *
the same as provided for in other cases of relocation
by the same section.
This section has been construed in 0 scamp v.
Crystal R. Co. 58 Fed. 233, holding that the inter-
ference does not come to the junior claim without fil-
ing the certificate. We consider the statute also, as
only declaratory of the rights of the junior claim and
that such certificate would operate to the same effect,
to wit: as a claim to or relocation of such overlap-
ANNUAL LABOR. 101
ping abandoned ground in States and Territories
where no such statute exists.
The Relocator No Trespasser.
When the year has expired and the work has
not been done a third party has' the right to enter
within its boundaries and relocate the claim, al-
though the original owner be still (constructively)
in possession. — DuPrat v. James, 15 M. R. 841.
A Relocation Begun Before the Year Expires Is
void. — Belk v. Meagher, 1 M. R. 522. The case cited
so decides, but it would certainly seem that if the
.party whose claim was taken did not either resume
work or take steps to recover by law until after the
expiration of the ensuing annual period that his
laches would operate to validate such a relocation,
although begun before the proper time.
Equity of the Annual Labor Law.
The opposition to the requirement of annual la-
bor so evident when first required by the Act of
1872 has gradually yielded to a concession of its
equity even in the case of claims located before its
passage.
The holder has no just right to prevent the gov-
ernment disposing of such claims as he is unwilling
or unable to1 work, to such as are ready to assume the
risk and develop the deposit, the estate of the holder
not being absolute, but by implied contract and gen-
eral mining custom conditioned upon development;
of which development the Government has merely
fixed the amount by the Act of 1872, and that at a
reasonable limit.
Development is the condition upon which the
Government allows the miner to hold his possessory
title and afterwards perfect it by patent. — Erhardt
v. Boaro, 15 M. R. 472; O'Reilly v. Campbell, 116 U.
S. 418; Kramer v. Settle, 9 M. R. 561. Nevertheless
the Act is to be strictly construed against forfeiture.
— Emerson v. McWhirter, 65 Pac. 1036.
102 ANNUAL LABOR.
Pleading.
The failure to do the annual labor must be spe-
cially pleaded; Renshaw v. Switzer, 15 M. R. 345.
The later location must plead a failure to do the
work, a consequent forfeiture and that the second
location thereupon was made upon the ground. —
Bishop v. Baisley, 41 Pac. 936. The general rule in
such cases that forfeiture must be plead specially is
found in Morenhaut v. Wilson, 1 M. R. 53; and the
principle is supported by the inference as to strict-
ness in such cases required. The annual labor need
not be proved if no issue is raised on it. — Mattingly
v. Lewisohn, 35 Pac. 111. Forfeiture when material
must be strictly proved. — Mt. Diablo Co. v. Callison,
9 M. R. 017; Colman v. Clements, 5 M. R. 247.
On the other hand, the Supreme Court of Ne-
vada holds that in an adverse claim suit, where the
direct issue is: which is the better claim? It mat-
ters not that the title of one be founded on a for-
feiture, and such fact need not be specially pleaded. —
Steel v. Gold Co. 15 M. R. 292. No rules of pleading
would be required at all, if the issue in every case
were reduced to this simplicity: which party ought
to prevail?
The Burden of Proof is upon the party asserting
that the work was not done. — Quigley v. Gillett, 35
Pac. 1040; Hall v. Kearny, 18 Colo. 505; 17 M. R. ..;
Harris v. Kellogg, 49 Pac. 708; Axiom Co. v. White,
72 N. W. 462; Beals v. Cone, 62 Pac. 948. And the
proof should be clear and convincing. — Strasburger
v. Beecher, 49 Pac. 740; Dibble v. Castle Chief Co.
70 N. W. 1055; Crown Point Co. v. Crismon, 65 Pac.
87. As to burden of proof when the work was done
outside the claim, see p. 95.
On Rebuttal the other side may show that the
work did not benefit the claim. But the work done
need not be that which would be most beneficial
to the claim. — Sherlock v. Leighton. 63 Pac. 580.
ANNUAL LABOR. 103
Proof of Annual Labor.
M. A. S. Sec. 3161. — Within six months after any set
time or annual period allowed for the performance of labor
or making improvements upon any lode claim or placer
claim, the person on whose behalf such outlay was made,
or some person for him, may make and record in the
office of the recorder of the county wherein such claim is
situate, an affidavit in substance as follows :
STATE OF COLORADO, County: ss.
Before me, the subscriber, personally appeared
, who, being duly sworn, saith that at least
dollars' worth of work or improvements were
performed or made upon (here describe claim or part of
claim), situate in mining district, county of
State of Colorado, between the day of ,
A. D , and the day of ,
A. D Such expenditure was made by or at
the expense of , owners of said claim, for
the purpose of complying with the law, and holding said
claim.
Jurat: (Signature) — — .
Affidavit Prima Facie Evidence.
And such affidavit when so recorded shall be prima
facie evidence of the performance of such labor or the mak-
ing of such improvements ; Provided, That all affidavits of
labor or improvements upon placer claims heretofore filed
and recorded within the period prescribed in this section,
or within the period prescribed in section *twenty-four hun-
dred and ten of the General Statutes, which shall contain
in substance the requirements of the affidavit prescribed by
this section or said section twenty-four hundred and ten,
shall be prima facie evidence of the performance of such
labor or the making of such improvements ; and the original
thereof, or a certified copy of the record of the same, shall
be received as evidence accordingly by the courts of this
State, and this class of evidence shall be receivable, where
relevant or material, in all cases, whether now pending or
hereafter brought. — April 20, 1889.
The above Act is a re-enactment of Sec. 15 of the
Act of 1874, amended in 1887 to include placers and
again in 1889 as above printed by adding the words
after "Provided" Its object is to provide a convenient
method of preserving proof of the labor performed by
making the affidavit prima facie evidence of the fact.
—Coleman v. Curtis, 30 Pac. 266.
*M. A. S. Sec. 3161 was Sec. 2410 of the General Slat
utes of Colorado.
104 ANNUAL LABOR.
Like acts exist in most of the other States and
Territories, the time for filing the certificate being:
in Arizona within three months; California and Wash-
ington within 30 days; Idaho and New, Mexico within
60 days after the period allowed for performance. In
Montana 20 days, Nevada and Wyoming 60 days, Utah
30 days after completion of work.
Failure to File Affidavit of Labor.
The neglect to file proof of labor, if the labor
has in fact been done, would not leave the lode open
to relocation, and the doing of the labor can be shown
by oral testimony.— M cGinnis v. Egbert, 15 M. R. 329;
Book v. Justice Co. 58 Fed. 118; 17 M. R. — ; Murray
Hill Co. v. Havenor, 66 Pac. 762. But the precaution
to file should by no means be neglected. The filing
makes out the proof of th3 fact of the labor being
done, which might afterwards be a difficult matter to
show.
The California Act of 1891 purported to make the
filing obligatory. — Harris v. Kellogg, 49 Pac. 708, and
in Idaho the failure to file is prima facie evidence that
the work has not been done.
The great objection to annual labor, with the pro-
fessional mind, is that it throws a mining title upon
constant parol proof, takes it out of the chain of title
as found recorded, and makes it depend upon the ex-
istence of facts which do not appear of record. This
evil should be obviated as far as possible by precau-
tions, such as are above suggested; but, after all, the
result remains, that no claim can be considered se-
cure until a patent is obtained, and the title reduced
to a record basis, and to certainty.
FORM OF AFFIDAVIT OF LABOR PERFORMED.
STATE OF COLORADO,, Summit County : ss.
Before me, the subscriber, personally appeared /. P.
Lambing, who being duly sworn, saith that at least one
hundred dollars' worth of work or improvements were per-
formed or made upon the Chaos Lode, situate on Silver
mountain, in Avalanche Mining District, County of Sum-
mit, State of Colorado, between the first day of January, A.
D. 1902, and the thirty-first day of December, A. D. 1902.
Such expenditure was made by or at the expense of Uoltcrt
ANNUAL LABOR. 105
W. FootCj owner (or one of the owners) of said claim, for
the purpose of complying with the law and holding said
claim. I. P. LAMBING.
Sworn and subscribed before me this second day of
January, A. D. 1903. . James TF. Swisher,
[SEAL.] Notary Public.
A single affidavit may be filed for the labor on
several claims. — McGinnis v. Egbert, 15 M. R. 329.
And it may be filed before the year elapses. — Id.
Certificate in Lieu of Annual Labor.
In 1893 and 1894 Congress passed Acts suspending
for each of those years the requirements of § 2324
for annual labor, provided the claimant recorded a
notice of his intention to hold and work the claim. —
28 St. L. lllf.
The conceded impulse to these acts was the de-
pression existing during those years but their wis-
dom has by no means been universally acknowledged.
They belong, however, to that class of remedial stat-
utes which are to be liberally construed.
Each of the Acts required the record to be made
during the year for which it was to have effect. But
a certificate filed in 1894, although neither work was
done nor certificate filed for 1893, would hold the
claim if it had not been in the meantime relocated.
The Act of filing the certificate provided for is ac-
cepted by the statute the same as the performance of
the work and if filed at any time during the period
allowed, would prevent a lawful relocation of the
claim by third parties.
There can be no forfeiture for failure of co-tenant
to contribute his proportion of expenditure for 1893,
when he has filed the certificate allowed by the Act,
even where the work had been done before the Act
'was passed. There is no vested interest in a right to
enforce a penalty. — Royston v. Miller, 76 Fed. 50.
When the Ground Is in Litigation the court may
appoint a receiver to see that the work is performed
and a forfeiture prevented. — Nevada Co. v. Home
Co. 98 Fed. 673.
106 ANNUAL LABOR ON PLACERS.
ANNUAL LABOR ON PLACERS.
Judicial Rulings As to Labor on Placers.
The question of annual labor on placers is a curi-
ous instance of the growth of law by following the
first judicial oversight as a precedent until the wrong
interpretation is firmly rooted as the true one. By no
fair construction of the Act of 1872 could it be ap-
plied to anything except lode claims. The very
amount of the labor was fixed by the number of feet
"in length along the vein." But in 1876, in Chapman
v. Toy Long, 1 M. R. 497, placers were referred to in-
cidentally as subject to the labor law. In Jacteson v.
Roby, 109 U. 8. 440, without argument, the same dic-
tum was expressed. Later, in Carney v. Arizona Co.
65 Gal. 40, the point was definitely made as to whether
such labor was required on placers, and the Supreme
Court of California, basing their opinion on the force
of the general terms of § 2329 — a section enacted two
years prior to the annual labor section — sustain the
affirmative of the proposition. In Sweet v. Webber, 7
Colo. 44$> the precedents thus established were fol-
lowed without any reference to the original statute. —
Morgan v. Tillotson, 15 Pac. 88.
The Forms of affidavit, notice and proof of for-
feiture given for lode claims will apply with obvious
alterations to placers.
Void State Legislation.
In 1879 the Legislature of Colorado passed an
Act (M. A. 8. § 3137) fixing the amount of annual,
labor on placers, altering the period during which it
was to be performed, and providing for forfeiture of
the delinquent co-owners' interest. It was declared
in conflict with the Congressional Act in attempting
to lessen the annual expenditure in Siveet v. Webber,
7 Colo. 443. It is obviously so in its attempt to inter-
FORFEITURE TO CO-OWNER. 107
fere with the beginning and end of the annual period.
All the other provisions of the section are superflu-
ous where they agree with the Act of Congress and
nugatory where they conflict with it.
FORFEITURE TO CO-OWNER.
By Failure to do Annual Labor — Notice.
R. S. Sec. 2324. * * * — Upon the failure of any
one of several co-owners to contribute his proportion of
the expenditures required hereby, the co-owners who have
performed the labor or made the improvements may, at the
expiration of the year, give such delinquent co-owner per-
sonal notice in writing or notice by publication in the news-
paper published nearest the claim, for at least once a week
for ninety days, and if at the expiration of ninety days
after such notice in writing or by publication such delin-
quent should fail or refuse to contribute his proportion of
the expenditure required by this section, his interest in the
claim shall become the property of his co-owners who have
made the required expenditures. — Sec. 5, A. G. May 10, 1872.
Expenditures in Excess of the Statutory Amount.
Although one co-owner has expended more than
enough to hold the claim, the delinquent co-owner, to
save forfeiture under the Act of Congress, is only
required to pay or tender his proportion of the
amount which the law required to be expended upon
the claim.
The recovery of his proportion of additional ex-
penditures depends upon other grounds, and is to be
enforced only by judicial proceedings, involving the
question of mining partnership, or the expressed or
implied assent of the co-owner to the expenditure of
the additional amount. — 5 L. 0. 4; Neuman v. Drei-
furst, 9 Colo. 228; McCord v. Oakland Q. Co. 64 Cal.
134; 49 Am. R. 689. The distinction is clearly ex-
pressed in Holbrooke v. Harrington, 36 Pac. 365.
If There Are Three Owners and One Performs
all the labor, and gives notice to his co-owners, and
one of them pays his proportion and offers to pay
108 FORFEITURE TO CO-OWNER.
one-half and join in the division of the forfeited claim
of the third party, we apprehend the second party
may refuse such proposition. The forfeiture accrues
solely to him who has performed the labor. — 31 L. D.
178.
Estoppel.
When a co-owner is delinquent, but the party who
has made the expenditure afterwards associates with
him in developing the claim, it would probably be
considered a waiver of the forfeiture.
Preservation of Proof.
The presumption in law is always against for-
feiture, and the party who asserts it must be pre-
pared to make his proof in such case. — Turner v.
Sawyer, 150 U. 8. 578; 17 M. R. — .
Amount and Place of Expenditure.
Where a forfeiture notice covered two claims it
was held void for not stating the "amount of money
spent upon each claim nor the facts which might ex-
cuse expenditure upon each claim." — Haynes v. Bris-
coe, 67 Pac. 156. The clause in italics we apprehend
refers to the possible case of group work where the
full amount might have been expended on a single
claim.
Choice Between Personal Service and Publication.
If the demand is made by personal service of the
forfeiture notice the delinquent must comply within
ninety days from date of service. If publication be
made the forfeiture is not complete, it would seem,
until ninety days after the last publication.
If publication be attempted it cannot be turned
into personal service by showing that copies of the
paper were sent to and received by the party in de-
fault.— Haynes vs. Briscoe, supra.
Nearest Newspaper.
As to what is the "newspaper published nearest
the claim" the construction followed by STEELE, J., in
Haynes v. Briscoe, seems to be clearly right; to wit,
FORFEITURE TO CO-OWNER. 109
tliat it means nearest in a direct line, and not by the
usually traveled route.
Length of Publication.
Publication for 13 weeks was held sufficient in
Elder v. Horseshoe Co. 87 N. W. 586.
Proceedings to Enforce Forfeiture.
In the first instance file the usual affidavit of
labor performed, in the form given on page 104.
FORFEITURE NOTICE. (A)
GEORGETOWN, COLO., January 3, 1903.
To Robert H. Tinker:
You are hereby notified that I have expended during
the year 1902 one hundred dollars in labor and improve-
ments upon the Corinne Lode Mining Claim, situate on Re-
publican Mountain in Griffith Mining District, County of
Clear Creels, State of Colorado, the location certificate of
which is found of record in book 20, 'page 222, in the office
of the recorder of said county, in order to hold said claim
under the provisions of section 2324 of the Revised Stat-
utes of the United States, and the amendment thereto ap-
proved January 22, 1880, concerning annual labor upon min-
ing claims, being the amount required to hold said lode for
the period ending on the 31st day of December, A. D. 1902.
And if, within ninety days from the personal service of this
notice, or within ninety days after the publication thereof,
you fail or refuse to contribute your proportion of such ex-
penditure as a co-owner, which amounts to fifty dollars, your
interest in the claim will become the property of the sub-
scriber, your co-owner who has made the required expendi-
ture, by the terms of said section.
JAMES H. PERSIIING.
If the demand contained in this Forfeiture Notice
is not complied with, within the prescribed period, it
should be recorded after making proof of its service
or publication, which can be most readily done by
endorsement upon the Notice "A" as follows:
PROOF OF FORFEITURE. (B)
Where the Forfeiture Notice has been personally served.
STATE OF COLORADO, County of Clear Creek: ss.
James H. Pershing, being duly sworn, saith, that he
served the within forfeiture notice upon Robert H. Tinker,
the delinquent co-owner therein named, upon the 17th day
of March A. D. 1903, at said county, by delivering to him
110 FORFEITURE TO CO-OWNER.
a true copy of the same and explaining the contents thereof ;
and that said Robert H. Tinker wholly failed to comply with
the demand contained in said notice or to pay or tender
his proportion of said expenditures during the period of
ninety days after said date or at any time since hitherto.
JAMES H. PERSHING.
Sworn and subscribed before me this second day of
July, A. D. 1903. John Tomay,
[SEAL.] Notary Public.
The above form completes the proceeding where
the notice has been personally served, but where it
has been by publication, discard the form "B" and
use the following "C" and "D."
ruBLi SHER'S PROOF OF FORFEITURE, (c)
STATE OF COLORADO, County of Clear Creek: ss.
(Copy of Notice "A" Attached.}
S. E. Wirt, being duly sworn saith, that he is the
publisher of the Clear Creek Topics, a weekly newspaper
published in said County, and that said Clear Creek Topics
is the newspaper published nearest to said Corinne Lode
Claim, and that the above notice was published in said pa-
per fourteen successive weeks, the first publication appear-
ing in the issue of January 6, 1903, and the last publication
in the issue of April 7, 1903.
S. E. WIRT.
Sworn and subscribed before me this ninth day of
April, A. D. 1903. John Tomay,
[SEAL.] Notary Public.
Upon the publisher's proof (C), the party who
has done the work will endorse his affidavit of non-
payment as follows:
AFFIDAVIT OF NON-PAYMENT. (D)
STATE OF COLORADO, County of Clear Creek: ss.
James H. Pershing, being duly sworn saith that Rob-
ert H. Tinker, the person named in the forfeiture notice at-
tached to the within proof of publication, wholly failed to
comply with the demand contained in said notice or to pay
or tender his proportion of said expenditures, during the
period of said notice or within ninety days thereafter, or at
any time. JAMES H. PERSHING.
Sworn and subscribed before me this tenth day of
July, A. D. 1903. John Tomay,
[SEAL.] Notary Public.
FORFEITURE TO CO-OWNER. Ill
These forms "A" and "B," in cases of personal
service, and "A," "C" and "D" in cases of advertise-
ment, complete the forfeiture and place its proof in
a shape where it is recognized in all land office pro-
ceedings as the equivalent of a deed from the delin-
quent party; but when the forfeiture has to be proved
in court, these ex parte proceedings would not be rec-
ognized, except the publisher's proof (if this proceed-
ing can be considered as an advertisement required
by law) which is in Colorado made evidence by stat-
ute, M. A. S. § 1753. Similar procedure for proof of
statutory publication is provided by statutes gen-
erally.
The forfeiting party is not bound by law to make
record proof of the forfeiture except as it may be
required by the practice of the Land Office. — Riste v.
Morton, 49 Pac. 656.
Minor Heirs — Grouping Notice.
In Elder v. Horseshoe Co. 70 N. W. 1060, it was
held that the failure of a co-tenant to pay for his
share of the work was a breach of the condition under
which he held title; that there was no saving of
the rights of minor heirs; that a notice of forfeiture
for several consecutive years was valid and that it
was optional to serve personal or publi&h a printed
notice of forfeiture.
A Party Not a Co-Tenant at Time of Notice
cannot be deprived of an after acquired title by such
notice. Even a patent procured by the forfeiting
title will stand to the use of such party. — Turner v.
Sawyer, 150 U. S. 578; 17 M. R. — .
The attempted forfeiture is a void proceeding
where his share of work has been in fact done by
the co-tenant alleged to be in default. — Brundy v.
May field, 38 Pac. 1067.
It has been held that the regularity of the for-
feiture cannot be questioned by third parties repre-
senting a title hostile to the claim where the alleged
forfeiture to co-owner was asserted. — Becker v. Pugti,
17 Colo. 243.
112 RELOCATION OF CLAIMS.
RELOCATION OF ABANDONED CLAIMS.
Statutory Regulation of Such Relocation.
M. A. S. Sec. 3162. — The re-location of abandoned lode-
claiine shall be by sinking a new discovery shaft and fix-
ing new boundaries in the same manner as if it were the lo-
cation of a new claim ; or the re-locator may sink the orig-
inal discovery shaft ten feet deeper than it was at the
time of abandonment, and erect new or adopt the old
boundaries, renewing the posts if removed or destroyed. In
either case a new location stake shall be erected. In any
case, whether the whole or part of an abandoned claim is
taken, the location certificate may state that the whole
or any part of the new location is located as abandoned prop-
erty.— Sec. 16, Pel. 13, 1874 .
The Old Claim Must First Be in Default.
This is the basis of the right to relocate. — Garthe
v. Hart, 15 M. R. 492; Lockhart v. Rollins, 16 M. R. 16.
Admits a Prior Hostile Claim.
Where the record on its face purports to be a re-
location of the claim of a stranger, this amounts to
an admission that the old claim had once a legal
existence, and an assertion that it has become open
to forfeiture.— Wills v. Blain, 20 Pac. 798; Shattuck
v. Costello, 68 Pac. 529. The burden of proof is upon
the relocator. — Providence Co. v. Burke, 57 Pac. 641.
Form and Manner of Relocation.
In the relocation of abandoned claims, the party
locates and records with the same particularity as
in making an original location or record. The only
practical distinctions are that he may, if found
standing, adopt the stakes of the old claim. And
his discovery shaft may be by sinking the old one
deeper. He has the same rights as an original dis-
coverer, although not technically a discoverer at all.
— Armstrong v. Lower, 15 M. R. 631; Pelican Co. v.
Snodgrass, 9 Colo. 339.
RELOCATION OF CLAIMS. 113
It has been held that a relocation cannot be made
on a blind working — a drift which has been run un-
derground from the bottom of the shaft on an ad-
joining claim. — Little Gunnell Co. v. Kimber, 1 M. R.
o36. See page 45-
The fact of improvements already on the ground
does not lessen the labor required from the relocator;
he must do the required amount of sinking, usually
ten feet, on the old, or on a new discovery shaft;
must erect a new stake, and unless he adopts exactly
the old location, he must set new posts or at all
events must see that his boundaries are established
on the ground. Where the old stakes are taken they
should be marked with the new name.
The Relocator No Trespasser.
A second party has a right to enter upon ground
although he knows of an attempted prior location
upon it, if such prior location be fatally defective. —
Brown v. Oregon Co. 110 Fed. 728; Deeney v. Mineral
Co. 67 Pac. 724.
No Connection With the Old Title.
The relocator has no rights by relation to the
date and priority of the title which he has destroyed
by his relocation. — Cheesman v. Shreeve, 40 Fed. 789,
17 M. R. ...
The relocator is not required to do the labor for
neglect of which the claim was forfeited, although a
substantial relocation might require as great an ex-
penditure; nor if it be an abandoned 1,600 or 3,000
foot claim, can it be relocated upon one shaft for
more than 1,500 feet. It is substantially a new loca-
tion, the same as if no former location or record had
ever been made.
Re-Entry by Original Owner.
After the annual period has expired, the old
claimant has still the first right; but if he has com-
menced work before another party enters, he must
complete the full amount required with reasonable
diligence, as otherwise the claim would remain for-
114 RELOCATION OP CLAIMS.
feit. — Honaker v. Martin, 27 Pac. 397. And after the
relocator has entered he has the right to maintain his
possession. — Morgan v. Tillottson, 78 Gal. 520.
When the Original Owner Had Begun Work
before the expiration of the year and so being not
yet entirely in default was at work on December 31st
— an entry by a relocator on January 1st (a Sunday)
or on January 2 (a legal holiday) will not initiate a
valid claim. — McNeil v. Pace, 3 L. D. 267.
Relocating Instead of Resuming.
In WarnocJc v. De Witt, 40 Pac. 205, the Supreme
Court of Utah decide in terms that an owner may
allow his claim to be in default as to annual labor
and then renew his monuments, file a new record
and hold under such second location. It cites the
case of Hunt v. Patchin, 35 Fed. 816, as upholding
such relocation. This Hunt case was a controversy
between co-owners where the rights of strangers or
of a hostile title were not involved and does not jus-
tify the citation.
The law requires of the owner to do a certain
amount of work within a certain period. It allows
him the indulgence of retaining his old title if he
re-enters and resumes work either during such pe-
riod or during the next year before another has en-
tered. To allow him from year to year to renew his
monuments and file new records would result in
wholly defeating the intent of the law. We think
that there is an implied distinction between his
rights and the rights of others in such a case. He
has forfeited the right to locate that ground by virtue
of his default in not living up to his assumed obliga-
tion to follow up his location by labor in good faith.
The claim is open to relocation by all citizens bar-
ring the one whose default is the occasion of its be-
ing open and his only rights are those conferred on
him by the Statute to wit: the right to resume and
perform. Mr. Lindley fully coincides with these
views.— 1 Lind. § 405.
RELOCATION OP CLAIMS. 115
Relocation After Patent Applied For.
In South End M. Co. v. Tinney, 35 Pac. 89, a lode
had applied for patent and completed its publication,
but considerable delay ensued without entry and the
annual labor was not kept up. During this period a
relocation was made. Afterwards the applicant com-
pleted his entry, but it was held that the relocation
title was valid and that the patentee took the pat-
ent in trust for the true owner, the relocator. There
would seem to be no doubt that the annual labor
must be kept up until actual entry, but whether other
courts will go to the extreme of this holding is not
to be assumed. MURPHY, C, J. dissented, as did BEL-
KNAP, J. in part. See page 92.
In Land Office proceedings the party asserting a
relocation must prove an abandonment of the orig-
inal claim. — 21 L. D. 219. Or the original application
may be cancelled for laches. See page J$0.
Overlapping Senior Claim.
It has been held that the filing of amended cer-
tificate giving such bounds as include the interfer-
ence of a prior survey which has failed to have its
annual labor performed operates as a relocation of
such abandoned overlapping area without specific
mention of such being the intent of the amendment.
— Johnson v. Young, 18 Colo. 625. See page 100.
Relocation of Abandoned Claim by Co-Tenant.
Where the several owners of a claim have al-
lowed the annual period to expire without doing the
annual labor, it has been asserted that any one of
them may enter upon the ground and relocate the
claim in his own name, leaving out his former co-
tenants. The Statute says that after the year has
expired without the labor being done, the claim
"Shall be open to relocation in the same manner as if
no location of the same had ever been made." — R. 8. Sec.
2324.
But these words are immediately followed by a
proviso which seems to make a distinction between
the rights of the old owners and the rights of stran-
116 RELOCATION OP CLAIMS.
gers, and there is an inherent distinction arising
from their joint ownership. It is certain that if all
the owners return to the claim their title would relate
back to the original discovery; and it is also a rule
of law that a tenant in common cannot rightfully
do any act which is subversive of his co-tenant's title,
and quite as certain that if he were allowed to relo-
cate as a stranger he must yield his prior claim abso-
lutely, and proceed in all particulars as an entire
stranger.
The question has been set at rest by repeated de-
cisions that any relocation or attempted relocation
made by a co-tenant is for the benefit of the common
title and one co-tenant cannot by recording in his
own name oust his co-tenants. — McCarthy v. Speed,
77 N. W. 590; Yarwood v. Johnson, 70 Pac. 123.
In Saunders v. Mackey, 6 Pac. 361, a co-owner
had agreed to see the work done; he did not do it,
and afterwards was a party to a relocation. The
court held that the failure operated to defeat the old
location, and that the relocation was valid; but in-
timated that in a proper action the party who had
so violated his agreement would be declared to hold
the title in trust. A very like case was Doherty v.
Morris, 11 Colo. 12, where the same ruling was made
and the breach of trust not considered on the plead-
ings. In Royston v. Miller, 76 Fed. 50, it was more
broadly held that a co-tenant so acting could tako no
advantage of his relocation. But it requires no de-
cision to say that if a coowner promise to do the
assessment work and fail so to do, or if he do it and
deny it and collude with a third party to relocate
(as was the fact in the Morris case} whatever title
he so by fraud obtains must enure to the good of the
injured party. In the Morris case, the actual doing
of the work was made apparent on the final trial. —
28 Pac. 85; 17 Colo. 105.
The late case of Yarwood v. Johnson, 70 Pac. 123,
was much like the Doherty case in its facts. Plain-
tiff alleged that defendant, a co-tenant, agreed to do
the work and did it. Defendant had relocated using
RELOCATION OP CLAIMS. 117
his brother's name, as soon as the year expired. The
Court held that if the work had been done the re-
location was void of course but they further broadly
and rightly held that any relocation made by a co-
tenant was for the benefit of the common title.
The case of Turner v. Sawyer, 150 U. 8. 578; 17
M. R. — , lays down the true principle applicable to
the case, to wit: that the co-tenant cannot acquire
and hold adversely a hostile title without allowing
right to co-tenant to pay his proportion of the cost
and take the benefit of the same, and that perfecting
patent was the purchase of such a title. — Suessen-
bach v. Bank, 41 N. W. 662; Mills v. Hart, 24 Colo.
505.
A co-owner attempting to relocate in his own
name so as to oust his associates from the title does
not abandon his claim to the ground nor forfeit by
estoppel the undivided interest in the original claim.
—Hulst v. Doerstler, 75 N. W. 270.
Other Instances of Fiduciary Relation.
The owners mortgaged their claim, abstained
from doing the annual labor, and after the year
elapsed relocated. — Held, that they could not so de-
feat the mortgage. — Alexander v. Sherman, 15 M. R.
638.
The grantor by quit-claim deed is not estopped
to relocate when his vendee fails subsequently to
keep up his annual labor. — Blake v. Thome, 16 Pac.
270. For attempted relocation by vendor after sale
see Minah Co. v. Briscoe, 89 Fed. 891.
But an agent or other party in a fiduciary capa-
city cannot relocate for his own benefit. — Lockhart
'v. Rollins, 16 M. R. 16. Nor betray the property to
a stranger. — Utah Co. v. Dickert Co. 21 Pac. 1002. Nor
can a hired prospector say that what he has turned
over to his outfitter is his own by a prior title. —
Fuller v. Harris, 29 Fed. 81 Jt.
Lessees cannot take their lessor's property by
going through the form of a relocation. — Lowry v.
Silver City Co. 179 U. 8. 196.
118 RELOCATION OP CLAIMS.
Where all the others have conveyed to one co-
tenant for the purpose of patenting, any relocation
made by him counts for the benefit of his associates,
including new ground taken in by his relocation. —
Hallack v. Tracer, 46 Pac. 110.
A Location Made by an Ex-Employee is not void
from the fact that his knowledge that the lode had
been followed into vacant ground had been acquired
while working for the owners of the adjoining pat-
ent.— Thallmann v. Thomas, 111 Fed. 277.
RELOCATION OF CLAIMS NOT ABANDONED.
In What Cases Owner May Relocate.
M. A. S. Sec. 3160. — If at any time the locator of
any mining claim heretofore or hereafter located, or his
assigns, shall apprehend that his original certificate was
defective, erroneous, or that the requirements of the law
had not been complied with before filing, or shall be de-
sirous of changing his surface boundaries, or of taking in
any part of an over-lapping claim which has been aban-
doned, or in case the original certificate was made prior to
the passage of this law, and he shall be desirous of secur-
ing the benefits of this act, such locator, or his assigns,
may file an additional certificate, subject to the provisions
of this act ; Provided, That such re-location does not inter-
fere with the existing rights of others at the time of such
re-location, and no such re-location or other record thereof
shall preclude the claimant or claimants from proving any
such title or titles as he or they may have held under pre-
vious location. — Sec. 13, Pel. 13, 187',.
This section provides an escape from the conse-
quences of loose and careless records; it also gives
the older claims the opportunity to take the full
width allowed by the new law; and further, in case
a lode is found to be not contained in the original
boundaries, it allows the error to be corrected. All
former rights are secured with the new privileges,
and greater certainty obtained under the relocation.
But it is only declaratory of the right which any
claimant has without the aid of any such statute to
RELOCATION OP CLAIMS. 119
amend his own publication of claim.- — Thompson v.
Spray, 72 Cal. 528.
In a relocation under this section, the name of the
lode should not ordinarily be changed, and the cer-
tificate should show that it is a relocation, and of
what lode.
FORM OF CERTIFICATE OF RE-LOCATION.
KNOW ALL MEN BY THESE PRESENTS, That I, Andrew
J. Hughes, of the City and County of Denver, State of Colo-
rado, claim by right of relocation, fifteen hundred feet, linear
and horizontal measurement, on the Kentucky Lode, along
the vein thereof, with all its dips, variations and angles, to-
gether with one hundred and fifty feet in width on each side
of the middle of said vein at the surface ; and all veins,
lodes, ledges and surface ground within the lines of said
claim ; 750 fee*" on said lode running north 10 degrees east
from the center of the discovery shaft, and 750 feet running
south 10 degrees west from said center of discovery shaft ;
said discovery shaft being situate upon said lode, within
the lines of said claim, in Silver Cliff Mining District,
County of Custer, State of Colorado. Said claim is bounded
and described as follows : Beginning at corner No. •! (etc.,
describe as in original location or according to the new
lines, if changed, and conclude as follows} :
Being the same lode originally located on the first
day of May, A. D. 1894, and recorded on the first day of
June, A. D. 1894, in ftoofc 7, page 11, in the office of the re-
corder of said county. This further certificate of loca-
tion is made without waiver of any previous rights, but
to correct any error in prior location or record, to secure
all abandoned overlapping claims, and to secure all the
benefits of section 3160 of Mills' Annotated Statutes of Col-
orado. Date of relocation, January 7, 1903. Date of cer-
tificate. January 8, 3903.
Attest : Jcre Mahoney. ANDREW J. HUGHES.
Nearly all the mining States have adopted stat-
utes similar to the Colorado Act providing for the re-
location of abandoned claims, for relocation by the
owner, or the filing of amended certificate of loca-
tion.
Same Particularity As in Original Location.
The discovery shaft, side and corner posts
should be found on the ground before any second rec-
ord is made, and if the relocation changes the bound-
aries or is made on account of any previous mistake
120 RELOCATION OF CLAIMS.
or irregularity in any act of location the same should
be rectified upon the ground before recording. The
description in the new certificate will, of course, cor-
respond to the new boundaries.
A new location stake should also be erected at
the discovery, if the length or width called for on
the original stake is altered, and especially if the
name of the claim is changed. In other instances the
old stake could be considered as answering all pur-
poses of notice the same as the old discovery shaft
which does not need to be sunk to any greater depth
if it has already the legal depth. In fact, no change,
whatever, upon the ground is necessary if the original
location was perfectly regular, and the only idea
in relocating or in filing the amended certificate is to
formally appropriate abandoned interferences or to
correct mistakes in the record. The relocator may
use as his corners old monuments already placed. —
Conway v. Hart, 62 Pac. 44.
When admitted in evidence both the original and
relocation certificates are to be construed together.
— Duncan v. Fulton, 61 Pac. 244- i
The Intent of the Act is :
First, to provide a recognized mode of relieving
from the consequences of clerical and other mis-
takes; second, to give to old locations the benefit of
the additional width allowed under the new Act, and
third, to allow change of bounds where the old sur-
vey was found to vary from the strike of the lode.
— Seymour v. Fisher, 16 Colo. 189.
An additional or amended location certificate
may be filed on old 3,000-foot claims for mere pur-
pose of more specific description, but such claim can-
not increase its width and at the same time retain its
old length.
After Loss of Discovery Shaft.
Where a discovery is made within the lines of an
older claim, or the locator suffers his discovery to be
patented by a hostile location, he may make a valid
relocation of that part of the claim which remains
RELOCATION OF CLAIMS. 121
to him upon a new discovery made on clear ground.
— Erwin v. Per ego, 93 Fed. 609; Silver City Co. v.
Lowry, 57 Pac. 11. Affirmed without discussion of
this point in Lowry v. S. C. Co. 179 U. 8. 196.
To Reform End Lines.
A relocation may be made so as to make the end
lines parallel and place the lode in position to claim
extralateral rights.-— Tyler Co. v. Last Chance Co. 71
Fed. 849.
Changing Boundaries.
A claim may be swung at right angles if it takes
up no ground to which rights have intervened. — Dun-
can v. Fultpn, 61 Pac. 244-
Distinction Between Relocation and Amended
Certificate.
In strictness there is a relocation only when some
change is made upon the ground, as by changing
length, width or boundaries; perhaps also when over-
lapping abandoned ground is taken. The certificate
filed to show such change is a relocation certificate.
But if the error is in the papers only, as by a mis-
leading or too vague description, there is no reloca-
tion, but only the filing of an amended location cer-
tificate. But the terms are not always used with
exactness even by the legal profession, all such papers
as well as acts being called relocations or relocation
certificates, and a misuse of the terms is not generally
material. — Cheesman v. Shreeve, 40 Fed. 789.
The above form would answer in either instance,
but the following is more exact in cases where no
change is made in the boundaries and no error except
indefinite description is to be corrected, and no over-
lapping ground to be taken up.
AMENDED LOCATION CERTIFICATE.
KNOW ALL MEN BY THESE PRESENTS, That I, Maurice
W. Levy, of the County of Teller, State of Colorado, do
hereby make and file this, my amended certificate of loca-
tion upon the Evolution Lode Mining Claim, situate In Roar-
ing Fork Mining District, County of Pitkin, State of Colo-
rado, claiming one hundred and fifty feet in width on each
122 RELOCATION OP CLAIMS.
side of the center of said lode at the surface, and all veins,
lodes and ledges within the lines of said claim, with their
dips, variations and angles ; one thousand feet on said lode
running north 33 degrees cast from center of discovery
shaft, and five hundred feet running south 22 degrees west
from said center of discovery shaft. Said lode mining claim
is bounded and described as follows, to wit : Beginning at
corner No. 1 (describe ~by metes and bounds with ties from
surveyors' notes) being the same lode of which the original
location certificate (made by Samuel Levy) is filed in book
17, page 51, in the office of the clerk and recorder of said
Pitkin County. *
This amended certificate is filed without waiver of any
previous rights, for the purpose of correcting and making
more specific the boundaries and description of said lode as
originally located upon the ground.
Date of original location, April 12, 1900. Date of
amended certificate, January 5, 1903.
MAUHICE W. LEVY.
Such amended location certificate may be filed
even after suit commenced. — Strepey v. Stark, 7
Colo. 6U{.
Relation Back and Intervening Claim.
It relates back, where adverse rights have not in-
tervened, to the date of the original location. — McGin-
nis v. Egbert, 15 M. R. 329; Strepey v. Stark, supra.
In the case of McEvoy v. Hyman, 15 M. R. 397,
and in Craig v. Thompson, 10 Colo. 517, the amended
record was allowed in evidence and to affect and cut
out intervening claimants. In the latter case the
intervening claimant was treated as a trespasser who
could not initiate rights; in the former the original
certificate was treated as a defective but not as a
void instrument.
The same ruling was followed in Cheesman v.
Shreeve, 40 Fed. 787, stating in terms that an
amended record related back to the date of the orig-
inal record.
In the Colorado Statute above printed there is
an express saving of intervening rights. But such
exception is superfluous because vested rights save
themselves. There is no doubt that an amended rec-
ord, the land office entry, the patent, every successive
incident toward perfecting title, relates back to the
RELOCATION OF CLAIMS. 123
first step taken toward obtaining such title. But not-
withstanding what might be gathered from the word-
ing of the decisions to such effect taken alone, they
are to be read in connection with the fact that the
doctrine of relation cannot be invoked to work injus-
tice to third parties. — Gibson v. Chouteau, 13 Wall,
101. And if a location or location certificate was so
defective as to be void, or so irregular that it allowed
strangers to become legal locators of the same ground,
in such cases an amended certificate or a relocation
will not relate back so as to cut out such intervening
locators. — Hall v. Arnott, 22 Pac. 200; Jordan v.
Schuerman, 53 Pac. 579; Deeney v. Mineral Go. 67 Pac.
724; Morrison v. Regan, 67 Pac. 956; Brown v. Ore-
gon Co. 110 Fed. 728.
Where Original Record Was Voidable Only.
In Moyle v. Bullene, 7 Colo. App. 308, the very
tenable distinction is made that where the original
location certificate was so "defective as to absolutely
fail to comply with the statutory requirements" it
was void and the amended record would not relate
back; but if the original paper was only lacking in
technical detail the two should be construed as of
the date of the first, and both construed together ac-
cording to the doctrine of relation. But in Frisholm
v. Fitzgerald, 53 Pac. 1109, where a record contained
no reference at all to a natural object or permanent
monument and was not only constructively void for
non-compliance with the Congressional Act, but was
declared void in terms by the Colorado Statute, the
relocation was held to relate back to the original
record and to cut out an intervening title.
The opinion in the case is peculiar in this, that
it is the personal view of one judge, and both of his
associates refused to concur. It is not the opinion
of a Court, and therefore has no obligation as a
precedent binding the nisi prius courts of that state.
Nothing in the case or the reasoning on which it is
based shakes our conclusions as stated in the pre-
ceding paragraph, and we consider untenable the
]24 RELOCATION OF CLAIMS.
proposition that any amendment can cure a void
record as against an intervening location.
Will Not Cure Want of Discovery.
In most of the cases above cited the point was
one of objection to the form or contents of the orig-
inal Location Certificate — that is, to the papers in the
case — not the merits of the discovery on the location
proper, but in Beals v. Cone, 62 Pac. 949, there was no
discovery when the original record was made. The
second claimant had a valid discovery before the
first had any discovery, and the court held that the
intervening claimant took the ground and that the
subsequent discovery on the prior claim could have
no relation back.
An amended location made by a party who has
parted with his title will not be recognized. — Gray
Copper Lode, 18 L. D. 536.
The Official Survey Corrects the Errors of the
original location and its stakes and corners need
not be identified with the locator's survey. — Howeth
v. Sullenger, 45 Pac. 841.
Changing Names of Locator on Notices. — Trans-
fers Before Record.
After a record is made based on a valid loca-
tion, the possessory title becomes perfect as and for
and subject to the conditions of a possessory title.
— Grioillim v. Donnellan, 15 M. R. 482. But before
record it is not unusual for prospectors to settle their
rights among themselves by the primitive but prac-
tical method of adding or erasing names from the
discovery notice. Names cannot be so erased to the
wrong of the right vested by putting them there in
the first instance. — Thompson v. Spray, 72 Cal. 528.
But this is matter of complaint only by the parties
injured (if injured) and strangers to the title can-
not take advantage of such things. — Thompson v.
Spray, supra; Omar v. Soper, 15 M. R. 496.
In Doe v. Waterloo Co. 70 Fed. 456, it was held
that a verbal transfer of an interest in a title not
UNITED STATES PATENT. 125
yet recorded was valid and that the new associate
taken in by the prospector could complete the loca-
tion for their joint benefit.
Change of Name of Lode.
It is not infrequent by filing amended location
certificate and posting amended notice on the claim,
to change the name of the lode. Where names such
as decency forbids have been placed on record the
Land Office has declined to patent the lode by name.
In ^such instances, or even where the name is objec-
tionable only for sentimental reasons, where all par-
ties interested consent, a change of name is certainly
legal. — Seymour v. Fisher, 16 Colo. 197. But when
done, as it has been, in instances, preparatory to ap-
plication for patent with intent to mislead and fore-
stall an anticipated adverse claim, or preparatory to
intended forfeiture publication, there could be no
stronger circumstance from which to draw the infer-
ence of fraud.
The Edith lode was located 1,200 feet in length.
Discovering that there was 200 feet of vacant ground
the Edith owners made a new location 1,400 feet
long, calling it the Kirby lode. The Court held that
the second location was a relocation of the first and a
valid claim.— Shoshone Co. v. Rutter, 87 Fed. 801.
UNITED STATES PATENT,
Policy of the Government As to Mineral Lands,
The policy of the United States has always been
to pass the fee simple title of its lands to the ulti-
mate purchaser, but to encourage offers to purchase
from settlers and improvers only. To extend this
policy into a system of land tenure it first gives a
general license to prospect and discover mineral
value — passing then to the discoverer the sole right
to possess and use, and finally grants the title in fee
after due proof of occupation and improvement.
126 UNITED STATES PATENT.
A temporary departure from this rule in taking
an impolitic royalty from the miner, was made in
the attempt to lease the lead and copper lands on
the Mississippi and Lake Superior. — Lorimier v.
Lewis, 12 M. R. 437.
The government had no occasion to deal with
lands containing the royal metals until the acquisi-
tion of California, upon which event, instead of
adopting any system of legislation, it merely reserved
the mineral lands from sale and acquiesced in the
asserted rights of the prospector and miner until 1866.
In that year were passed the first of what are
known as the Mining Acts, now embraced in Title
32 of the Revised Statutes. This was followed by the
Acts of 1870 and 1872, with other slight amendments.
The ultimate intent of these Acts is to pass the
fee simple to the discoverer of a mine, or his grantees,
after a certain amount of development has been made
upon the claim, and until final entry the locator holds
by a possessory title.
Progression of Title.
Title becomes initiate by discovery; the posses-
sory title is complete upon location and record, and
is maintained from year to year by compliance with
the condition of annual labor. The occupant after
$500 expenditure has the right to buy the land from
the United States by entry thereof in the local land
office. This entry entitles him to receive a patent
which issues later from the general land office at
Washington.
Title After Entry and Before Patent.
After entry in the land office, although the title
is still technically equitable, it amounts practically
to the legal or fee simple, because:
First — The receiver's receipt for the purchase
money is evidence of title in the purchaser, with or
without statute to such effect.— M. A. 8. § 1748; Last
Chance Co. v. Tyler Co. 61 Fed. 558.
Second — The subsequent issue of the patent fol-
lows as a mere ministerial act, except where some
UNITED STATES PATENT. 127
irregularity has occurred in the application, or a
protest delays or prevents issue.
Third — Before entry is allowed the time for
the assertion of any adverse title must have, elapsed.
Fourth — Upon the issuance of patent, the fee
passes to the purchaser, and the title relates back in
all cases to the entry at least.
Choice of Land Systems.
It was in the power of the United States to have
^adopted any one of several different systems in the
disposition of its mineral lands; but at some stage,
under any system, a decision of the conflicting
equities between the adverse claimants would have
to be reached.
First — A system based on rectangular surveys,
upon which a block book could be platted, which
would, on its face, establish the priority of any as-
sertion of title to the block representing any certain
mining claim, analogous to the method adopted by
the British Government with reference to the Austra-
lian gold fields, and the same in outline as the system
adopted in case of agricultural lands, the departure
from which in yielding to prejudice in favor of ob-
solete district rules, has caused nearly all the con-
tention which is now common.
Second — A system under which every applicant
would receive a patent upon an ex parte proceeding
without regard to priority or adverse rights, leaving
the several patentees to contest their equities in the
courts upon an equal footing analogous to the old
land system of Virginia.
Third — A system based on making the proceed-
ing to obtain patent a proceeding in rem, compelling
the applicant to give notice of his application and
forcing an adjudication of all adverse equities before
the issue of the patent, which was the Pennsylvania
system.
The last is the system adopted by the govern-
ment, by the original act of 1866, and continued in
all the amendments. %
128 UNITED STATES PATENT.
Priorities Adjudicated Before Patent Issues.
The result follows that upon the issue of a pat-
ent the patentee has got rid of all assertions of title
hostile to his own title, and all supposed prior dis-
coveries and locations which might have interfered
with him are lost, by failure to assert them as ad-
verse claims, or to prove them in the ejectment suit
brought in support of the adverse claim. — Silver Boiv
Co. v. Clarke, 5 Pac.. 570; Raunheim v. Dam, 9 Pac.
iS,(^; Kannaugh v. Quartette Co. 27 Pac. 2.'i5 ; Seymour
v. Fisher, 16 Colo. 197.
The publication required by the Mining Acts "is
in effect a summons to all persons whose interests
may be affected by the issuance of a patent," to
appear and file their adverse claims. — Wolfley v. Leb-
anon Co. 13 M. R. 282; Wight v. Dubois, 21 Fed. 693.
The Land Department Issues the First Patent to
the first applicant, without regard to the priority
of his possessory title, and in case the senior pos-
sessory title fail to assert its seniority by filing and
prosecuting its adverse claim, the seniority of such
possessory title is lost, and yields to the title which
the government issues to the applicant for patent.
Segregation from Public Domain.
The Surveyor General shows all conflicts with
previous surveys, upon the approved plat; and notes
all previous official surveys in the approved field
notes; but only approves as to the correctness of
the survey, not excluding the area of priorities, if
their inclusion is asked. The register of the land of-
fice, when application for patent is made, is supposed
to except all previous surveys as noted in the approved
field notes (where such surveys have been followed
by applications for patent), in his notice for publica-
tion, which is the first period at which the officers
of the United States recognize the segregation of the
claim from the mass of the public domain. From
this point the claim so first segregated must, under
the practice of the land office, be recognized by all
subsequent applicants for survey as prior in point of
UNITED STATES PATENT. 129
time, and they are compelled to except from their
applications such previousjy approved surveys, so
duly followed by filing their applications.
Under former practice the segregation took place
in the office of the Surveyor General. But the Sur-
veyor General now approves everything within the
exterior boundaries as clear ground, to the applicant
for survey, if he so request, leaving to the land office
the duty of excepting from his entry and patent,
prior patents and applications for patent.
Under the Act of 1866 the Survey was not ap-
proved until after the application had been otherwise
perfected.
The Doctrine of Relation.
Where successive steps are essential to perfect
title, as discovery, location, record, application for
patent, entry and finally patent; and during the prog-
ress of the time required to complete the series two
hostile parties have taken some or all of these steps
towards obtaining title to the same ground — the doc-
trine of relation may become material to determine
between them the question of priority*
Where discovery is followed by location and rec-
ord within the proper or fixed periods allowed and
entry and patent follow in due course, the title is
considered in general and in theory to relate back
to discovery. This theoretical relation is, of
course, of no materiality unless a second title has
intervened, and if a second title has intervened at a
period when the first title was in default the doctrine
of relation does not apply, or rather it favors the
second title.
The different classes of claims to which it ap-
plies necessitate certain distinctions.
Where Both Are Possessory the first discovery
followed up by completed location within the
allowed period becomes a title calling back to
date of discovery, and by the doctrine of relation
will cut out a possessory title completed sooner
though initiated later than the first discovery. — Pat-
130 UNITED STATES PATENT.
terson v. Hitchcock, 5 M. R. 542. For instance, if A
discover a lode on January 1st in a State which gives
60 days to sink discovery and 30 days more to record,
and he completes sinking on the 60th day and records
on the 90th day, he has an older and better title than
B, who discovers the same vein on January 10th, but
promptly completes his sinking by the 20th and sur-
veys and records on the 21st. B is prior to A in
point of time on every incident of location except
discovery, but A, not exceeding his statutory limit of
time, is not in default on any item of location, clearly
calls back to January 1st and has the older and better
possessory title.
If, on the other hand, A allows any of his periods
to expire without doing the act for which the law
allowed a certain time and the second title becomes
initiate during such period of lapse, the doctrine of
relation does not apply and B has the older and better
title. ;
Patented Claims — Failure to Adverse.
Where two claims overlap or cover the same
ground, and one of them applies for patent, the other
must adverse and maintain its adverse, otherwise it
loses all pretense to priority; and if it fails so to do
and afterwards goes to patent on its own application,
all claims to priority are gone and it cannot appeal
to the doctrine of relation to defeat the express terms
of the statute. — Eureka Co. v. Richmond Co. 9 M. R.
578.
The above paragraph refers only to cases where
there is a surface conflict. For if there be no surface
conflict there can be no adverse and the rule has no
application. — Empire Co. v. Bunker Hill Co. 114 Fed.
420.
Thus in the class of cases where two veins par-
allel on surface, dip toward each other and are found
to unite going down, the doctrine of relation has its
full application and title will be carried back to the
date of location and if necessary to the date of dis-
UNITED STATES PATENT. 131
covery so as to give the united vein to the title first
initiated and perfected without default or lapse.
Applications Pending at Same Time.
The question may also arise between two claim-
ants who are applying for patent at the same time.
This proceeding begins by an order for Survey,
which is followed by the survey in the field
and by its approval in the Surveyor Gen-
eral's Office. This approved Survey or the date of
its approval determines no priorities. It is only
when the papers reach the Land Office that a survey
becomes "prior" by its right to be excluded from later
applications, and the applicant whose area is excluded
in the Land Office becomes the party who must ad-
verse in order to maintain such priority of title as he
may claim.— 26 L. D. 81; 29 Id. 226. If he fail to ad-
verse, his patent when obtained will show the ground
excluded in favor of the party who was first to file his
"application for patent" (form M, post p. 396), and
even if he be the first to enter and pay and obtain the
Receiver's Receipt, the entry when made of the Sur-
vey which first filed its "application" will relate back
to the date of such filing. ;
Double Patent Under Different Systems.
It may become material also in any case where
two parties hold patents for the same ground, which
have been obtained under different ex parte proceed-
ings where there was no opportunity to adverse and
the proceeding therefore not a proceeding in rem as
in a conflict between School Land and a mining
claim. — Heydenfeldt v, Daney Co. IS M. R. 205. Or
between a lode and a Town Site. — Talbott v. King, 9
Pac. 434; Silver Bow Co. v. Clark, 5 Mont. 378; The
Smoke House Lode, 12 Pac. 858. Or where the same
ground has been patented as Lode and Placer. — Iron
S. Co. v. Campbell, 16 M. R. 218.
A patent always relates back to date of entry at
least. But a senior entry on a junior application will
not be prior to the entry of a senior application when
made, because relation will carry the junior entry
132 UNITED STATES PATENT.
back to the date of its senior application. All three
items, the application, the entry and the patent are
merely successive steps, and the latter two relate to
the date of the first.
Many loose assertions are found in the cases on
this topic, not taking into consideration the condi-
tions above attempted to be pointed out. If, in all
cases, a patent related back to discovery, a patent of
to-day on a location of 1866 would supplant a patent
to the same ground issued twenty years ago. Rela-
tion never applies either to defeat a statute or to .
work -manifest injustice.
Excluded Area.
It is the practice of the department to exclude
from each later patent all claims which have land
office priority and the junior patentee has no right
under his patent to follow any vein on its strike
through the area reserved in favor of such excluded
survey. — Montana Co. v. Boston Co. 51 Pac. 159. And
where such exclusion plainly appears, and, adhering
strictly to the ruling in the case just cited, it can
hardly be said that there are two grants of the same
thing, although each lode patent is issued on the
theory that it covers so many lineal feet on the vein.
The Nature of the Merger of the possessory into
the patented title is learnedly discussed in Black
v. Elkhorn Co. 49 Fed. 549; Affirmed 52 Fed. 859;
163 U. 8. 445.
What It Conveys.
A patent covers blind lodes within and under-
neath its lines. — Galhoun Co. v. Ajax Co. 59 Pac.
608; affirmed 182 U. 8. 499. The surface and the
right to follow on the dip, veins apexing within its
lines.— Empire Co. v. Bunker Hill Co. 114 Fed. 420.
The surface although the vein has left the side lines.
— Argonaut Co. v. Turner, 23 Colo. 400.
Conclusiveness As to Title.
A patent is conclusive in all suits at law (1)
when valid on its face and (2) when not issued in
UNITED STATES PATENT. 133
opposition to law. In any such case it is a final
disposition of the legal title and must be recognized
by courts and allowed such effect. — Boggs v. Merced
Co. 10 M. R. 334- It is also conclusive as to the
bounds or limits of the claim. — Waterloo Co. v. Doe,
56 Fed. 685. Patent is conclusive evidence that there
had been a sufficient location notice.— Chambers v.
Jones, 42 Pac. 758; that a valid discovery and lo-
cation had been made; that the required expendi-
ture showed on the ground and that the patentee is
owner of all veins enclosed by his survey. — Carson
City Co. v. North Star Co. 83 Fed: 658.
It is conclusive evidence of a prior location as
to all claims having surface conflicts not excluded
from its area. — Empire Co. v. Bunker Hill Co. 114
Fed. 4^0. And of a valid discovery. — Calhoun Co. v.
Ajax Co. 182 U. 8. 499.
But the late case of Uinta Co. v. Creede Co. 119
Fed. 164, makes the distinction that where a hostile
claim has had no opportunity to contest the issue of
the patent, as for instance, where a lode has been
patented across the line of a tunnel before it was
cut in the tunnel, the patent is not conclusive evi-
dence of a valid discovery as against the asserted
rights of such tunnel.
Conclusiveness As to Mineral Character of Land.
Where it issues after a supposed determination
of the mineral or non-mineral character of the land
it is conclusive on that point. — Gale v. Best, 78 Cal.
235; 12 Am. St. R. 44.
Patent, When Void.
If not valid on its face or if issued in spite
of a law which forbade its issuance, it is an in-
operative paper, and may be passed upon and ex-
cluded in a suit at law — because it is void. — Kahn
v. Old Telegraph Co. 11 M. R. 646; St. Louis Co. v.
Kemp, Id. 673; Garrard v. S. P. Mines, 82 Fed. 578.
A patent for a lode in excess of legal width has been
held void. — Lakin v. Dolly, 53 Fed. 333; Lakin v.
Roberts, 54 Fed. 461; but otherwise as to patent per-
134 UNITED STATES PATENT.
fecting locations made prior to the Act of 1872. — Gar-
son City Co. v. North Star Go. supra.
Patent, When Voidable.
But if only irregular, or obtained by fraud, or
issued to the wrong party, it is only voidable^ and
must, until set aside, or a trust declared thereon,
be taken as conclusive both at law and in equity. —
Silver Bow Go. v. Glarke, 5 Pac. 570; Rose v. Rich-
mond Go. 17 Nev. 26.
A patent is not void as to the excess from the
fact that it conveys more than 300 feet from the
center of the lode. — Peabody Go. v. Gold Hill Go.
97 Fed. 657; 111 Fed. 818.
Void Conditions in Patents.
The land office cannot insert conditions or ex-
ceptions not authorized by law, in a patent. — Deffe-
back v. Hawke, 115 U. S. 392; Clary v. Hazlett, 7
Pac. 701; Talbott v. King, 9 Pac. 434; Silver Bow Go.
v. Clarke, 5 Pac, 570; Davis v. Weibbold, 139 U. S.
527.
All Presumptions in Its Favor.
When a patent is judicially attacked all presump-
tions are indulged to its favor. It will be assumed
that everything was done which the law required to
be done, and mere irregularities, though proved, will
not impeach it.— U. S. v. Marshall Co. 16 M. R. 205;
U. S. v. Iron-Silver Co. 128 U. S. 673
Placer Patented As Lode Claim.
It is no fraud upon the Government if placer
ground has been patented as a lode claim at a greater
price per acre. — Peabody Co. v. Gold Hill Co. Ill Fed.
818.
Suits by U. S. to Annul Patent;
When obtained by fraud against the United
States, as where mineral land has been entered as
agricultural, or upon false representations, the false
representations being material, the application to set
aside being made without too great delay and inno-
cent buyers being to a certain extent protected — it
UNITED STATES PATENT. 135
may be set aside at the suit of the United States.
This requires action by the Attorney General, who
directs the U. S. District Attorney to bring suit in
the U. S. Circuit Court. — Boggs v. Merced Co. 10 M.
R. 334; Mullan v. U. S. 118 U. S. 271; U. 8. v. Iron-
Silver Co. 128 U. 8. 673.
Such action lies where the patent has issued
through fraud, mistake or erroneous views of law by
the Land Department. — U. S. v. Winona Co. 67 Fed.
948. See STATUTE OF LIMITATIONS.
Degree of Proof.
In suits to set aside a patent or to declare a trust
in favor of another claimant, the proof to overcome
the presumptions in favor of the patent must be clear
and convincing.— U. 8. v. King, 83 Fed. 188; Thall-
mann v. Thomas, 111 Fed. 277.
Where Issued to the Wrong Party in fraud of the
right of the real owner, the suit is not to set the
patent aside, but to have it declared that the party
to whom it issued holds in trust, and to compel by
decree of court a conveyance from him to the part'y
to whom it should have issued.
The Federal Courts have jurisdiction of such
cases independent of the citizenship of the parties. —
Gates v. Producers Co. 96 Fed. 7.
Such a suit cannot be maintained on mere pri-
ority of title, for here an adverse claim should have
been filed, but only on the allegation of breach of
trust or in like instances.
A party who had at the time of its issue no claim
of title to the land patented has no standing to at-
tack it for fraud practiced on the land department.
—Peabody Co. v. Gold Hill Co. Ill Fed. 817.
Irrevocable — No Second Patent.
After a patent has issued, the land office has no
power to cancel or recall the same nor to issue a
second patent for the same land to another party.
—Moore v. Ro~bUns, 96 U. 8. 530.
136 INTERFERENCE OF CLAIMS.
Wrong Description.
Where, by reason of erroneous survey or other
mistake, the patent describes other land than that
actually applied for, it may be corrected upon sur-
render of the patent— 22 L. D. 101; 28 Id. 307; 29
Id. 160.
Title by Receiver's Receipt.
After valid entry its holder has a vested estate
and the land has ceased to be public domain. — Rader
v. Allen, 41 Pac. 154.
Canceling Receiver's Receipt.
But the land office has the power to cancel the
receiver's receipt and all preliminary proceedings,
and frequently exercises this power in case of irregu-
larities in the application.
Land Office Adjudications.
When the contest for priority between patentees
has been contested and adjudicated in the land office
their findings within their jurisdiction on matters
of fact or mixed law and fact, in the absence of
fraud or imposition, are accepted by the courts as
conclusive. — Jeffords v. Hine, 15 M. R. 575; Aurora
Hill Co. v. 85 Co. Id. 581.
INTERFERENCE OF CLAIMS.
Veins Uniting on Strike or Dip.
R. S. Sec. 2336. — Where two or more veins intersect
or cross each other, priority of title shall govern, and such
prior location shall be entitled to all ore or mineral con-
tained within the space of intersection ; but the subsequent
location shall have the right of way through the space of
intersection for the purposes of the convenient working
of the mine. And where two or more veins unite, the oldest
or prior location shall take the vein below the point of
union, including all the space of intersection. — Sec. 14,
May 10, 1872.
INTERFERENCE OP CLAIMS 137
Mining Acts Based on Erroneous Presumption As
to Facts — Irregularity of Veins.
The cause of the principal question under this
heading is the fact that the U. S. Mining Acts con-
cerning lode claims are based on the supposition or
theory that a lode is a straight vein whose course
can be readily ascertained and indicated by a straight
line or a series of straight lines; and that occasion-
ally such a vein !is crossed by another in a similar
straight line, merely requiring the right of way to
give each claim its proper lode. But in fact a lode is
rarely a straight line; it is seldom to be traced with-
out confusion for more than a few hundred feet; and
in its course other veins are absorbed into it; and
offshoots (not only spurs, but perhaps better de-
veloped veins than itself) run from it; and in its
extension downward," it invariably dips laterally;
and often shows a fork of which both parts approach
the surface; and it will divide, and may or may not
unite at another point; and it will abut suddenly
upon country rock and so be thrown far to one side;
and instead of showing distinct lines, mineral veins
are as irregular, as disproportioned in length and
width, as much intermingled, though on a larger
scale, as are the veins in a block of marble.
The theory that each survey covers a distinct
vein, or that a survey covers any vein at all, or that
its center line follows the apex of a vein, or that its
discovery shaft is sunk on a vein, is all bare assump-
tion— these points depend upon underground develop-
ments, and not on diagrams or surface surveys.
Presumption That Survey Covers the Vein.
But upon proof of discovery and location it is in-
ferred that the survey lines include the apex of the
vein, and this presumption throws the burden of
proof on the party alleging a departure. — Armstrong
v. Lower, 6 Colo. 585; 15 M. R. 458; Wakeman v. Nor-
ton, 2Jf Colo. 192.
The interference of veins by uniting on the
strike, or, more commonly, the interference of claims
138 CROSS LODES.
by the holder of one part of a blind lode developing
into another part of the same lode located by an-
other as a. separate lode — was of vital importance be-
fore the Act of 1872, because surface lines were not
marked and each claimant was supposed to follow his
vein wherever it ran. But under present law the
surface lines and the apex within them in general
define the rights of all parties, with the obvious ex-
ception of
First — Cross lodes.
Second — Veins uniting on the dip — which points
are considered under the next two headings.
Overlapping Surveys.
The holder of the oldest patent, i. e., in general
the patent which has the senior entry, holds all veins
which apex within the area of conflict. — Montana Go.
v. Boston Co. 51 Pac. 159. The same rule applies in
favor of the older title where both are possessory.
Where one is patented and the other is possessory the
patented claim holds because (1) it may always have
been the earlier title, and (2) if not, it has become
so by the failure of the overlapper to adverse. — Em-
pire Go. v. Bunker Hill Co. 114 Fed. 420.
Where there are' overlapping surveys, the side
lines of the senior claim do not become the end lines
of the junior claim when the location extends be-
yond the intersecting claims. — Gheesman v. Hart, 16
M. R. 263. Lines may be lawfully extended over, and
stakes set upon, prior locations so as to secure paral-
lel end lines, or for any other legitimate purpose. —
Del Monte Case, 171 U. 8. 55.
CROSS LODES.
Priority of Title Controls.
R. S. Sec. 2336. — Where two or more veins intersect
or cross each other, priority of title shall govern, and such
prior location shall be entitled to all ore or mineral con-
tained within the space of intersection ; but the subse-
CROSS LODES. 139
quent location shall have the right of way through the
space of intersection for the purposes of the convenient
working of the mine. * * * — Sec. 1^ A. C. May 10, 1872.
The above section being a single section of an
entire Act, must, if ambiguous, be compared with all
other sections of the same Act which have any bear-
ing on the subject matter. The only other pertinent
portion of the Act is that part of section 2322 (Sec.
3, A. C. May 10, 1872), which says:
"The locators of all mining locations * * * where
no adverse claim exists on the tenth day of May, eighteen
hundred and seventy-two, * * * shall have the ex-
clusive right of possession and enjoyment of all the sur-
face included within the lines of their locations, and of all
veins, lodes, and ledges throughout their entire depth, the
top or apex of which lies inside of such surface-lines ex-
tended downward vertically.." — * * * *
In the case of lodes located under or before the
Act of 1866, a right of way is clearly granted under
the two sections above quoted. Those old claims held
but a single vein, and the owners of any other vein,
had a right to work up to the very wall of the crossed
vein. Such being the case, the Act of May 10, 1872,
merely added the easement of the right to work
through the crossed vein; but as to lodes located un-
der the Act of May 10, 1872, the matter is complicated
by the fact that all claims under that Act have a
width ranging from 50 to 600 feet, and that all veins
within such distance have been granted to the owner
of the claim as fully as the vein upon which his dis-
covery is sunk.
Title to the Space of Intersection.
The question has been often stated in this form:
— "Does the space of intersection, mentioned in sec-
tion 2336, mean the space of the actual crossing of
the veins — or the space through which the cross lode
runs from side line to side line?" But this question
does not reach the merits and is based upon a mis-
understanding or a want of due attention to the
words of the Act.
If the cross lode have the right of crossing at
the point of actual vein crossing only, how is it to
140 CROSS I.ODKS.
be worked across the ground between the side line
and the space of actual vein intersection? Of what
avail would such right of crossing be to those own-
ing no easement or estate in such intervening ground?
It is clear then that to make the Act have a just and
sensible meaning, the "space of intersection" refers
to the whole distance from side line to side line, and
this being conceded, the real question remains: "To
whom does the cross vein belong,- throughout the
space of intersection from side line to side line?"
Sec. 2322 had already granted it to the prior
owner of the crossed lode. It was within the power
of Congress, by a subsequent clause, to have made the
crossing lode an exception carved out of the general
grant of the words of the previous section; but has
it attempted so to do? Tlie only grant of section
2336 is, the right of way, which of itself implies that
it is not a grant of the vein, but of an easement to
which the estate of the prior location is made servi-
ent.
To give any part of the space of intersection to
the holder of the later location would be to take from
the older location something already granted to it.
To create an exception out of his grant as he orig-
inally takes it under Act of Congress would require
in the wording of the Act expressions as strong as
are required to create an exception in a deed. An
exception is equivalent to the reconveyance of land
already conveyed. A right of way is not an excep-
tion, but a reservation which may be inferred from
any wording indicating an intention to create an
easement. It takes nothing from the body of the
grant of the first locator; but compels the first loca-
tor to use or hold his grant or claim subject to a
right or privilege to the junior or overlapping claim-
ant, of reaching the other end of his claim by passage
through the senior location.
It seems to the author, from the above reasoning,
that a cross lode takes no estate in the claim it
crosses and has no rights as against the crossed claim
CROSS LODES. 141
except the mere right to drift through, leaving all
ore as the property of the crossed claim.
Decisions As to Eights of Cross Lodes.
All recent cases are in agreement with these
views. — Par dee v. Murray, 15 M. R. 515 ; Watervale Co.
v. Leach, 33 Pac. 418; Wilhelm v. Silvester, 35 Pac.
997; Calhoun Go. v. Ajax Go. 59 Pac. 607; the latter
overrules the case of Branagan v. Dulaney, 8 Golo.
408, which had been so often cited against the above
construction. The Ajax case was affirmed in 182
U. S. 499.
Cross Surveys — Veins Merging.
The fact that the surveys cross does not neces-
sarily raise the question of cross lodes. There must
be an actual crossing of the veins, and if one vein
unite with the other on the strike the vein beyond
the point of union belongs to the holder of the older
patent. — Lee v. Stahl, 16 M. R. 152; Book v. Justice
Go. 58 Fed. 106; 17 M. R. — .
There must be two separate mineral veins to
make a crossing within the law. — Morgenson v. Mid-
dlesex Go. 11 Golo. 176; Omar v. Soper, Id. 389.
The Burden of Proof is on the party alleging a
crossing. — Lee v. Stahl, 16 M. R. 152.
No Right to Enter to Prove Crossing.
The actual crossing of lodes is more often a
matter of conjecture than proof, and upon the con-
jecture of a crossing a party has no right to enter
upon the crossed claim to prospect for his lode or
prove the crossing. The latter clause of § 2322 con-
tains a proviso against the use of the surface in any
such case. The right of crossing can be exercised
only by following the vein from some point outside
of the crossed claim to a point where it enters the
crossed claim, and thence by drift along the same. —
Atkins v. Hendree, 2 M. R. 328.
Settlements Between Cross Lode Owners will be
upheld, although they were at the time ignorant of
142 VEINS UNITING ON DIP.
their strict legal rights. — Coffee v. Emigh, 15 Colo.
184.
As Between Grantor and Grantee the grantor can-
not claim any implied right to cross the granted
ground on pretense of following a cross vein. He
has conveyed all veins apexing within the granted
area. — Stinchfield v. Gillis, 40 Pac. 98.
VEINS UNITING ON THE DIP.
Prior Location Takes Title.
R. S. Sec. 2336. — * * * Where two or more veins
unite, the oldest or prior location shall take the vein below
the point of union, including all the space of intersection. —
Sec. Ik, A. C. May 10, 1872.
The above paragraph follows that part of § 2336,
which says that "priority of title shall govern" in
case of interference of veins on their strike."
It often happens that on developing two veins by
shafts from surface they are found to unite as they
go down. A vertical section of the two lodes in such
case gives the form of the letter Y. Where both
claims are possessory, the older title, i. e., the older
discovery properly followed by location and record
takes the vein below the point of union. If both
are patented, or if one only is patented, the obvious
question is: Does the first patent hold on account
of failure of the first discovery to adverse? or does
the first discovery hold?
In the case of the Cham.pion Co. v. Cons. Wyo-
ming Co. 16 M. R. 145, the two lodes in controversy
so came together at about 500 feet in depth. The
Wyoming lode was patented in 1874. The Philip
lode claimed to be a location prior in date to the
Wyoming, but was not able to prove such allegation,
and therefore had no state of facts upon which the
court could properly decide this point and interpret
the statute. Still, they intimated that the older pos-
VEINS UNITING ON DIP. 143
sessory title would hold without regard to patent. In
the case of Lee v. Stahl, 16 M. R. 152, which involved
the rights of cross lodes only, the court in argument
leaned to the same construction.
But the point has been since expressly decided
and always to the same result, to wit: in favor of the
older location. — Little Josephine Go. v. Fullerton, 58
Fed. 521; 17 M. R. — ; Cons. Wyoming Co. v. Cham-
pion Co. 63 Fed. 540.
Where two veins apexing in two patents were
alleged to unite after they had come by the dip un-
der a third patent it was held that the third patent
had no title to the vein and that the controversy must
arise between the patents which covered the apexes. —
Roxanna Co. v. Cone, 100 Fed. 168.
Relation — Presumption.
Even if suspected, such union would rarely be
provable in time to support an adverse claim, and
even if known an adverse claim could not be brought
because an adverse is allowed only where there is a
surface conflict. — 6 L. D. 320. The doctrine of rela-
tion back to discovery, therefore, applies, but the
date of discovery and of the respective acts of loca-
tion are open to parol proof. If the union becomes
known or comes in contest, as it generally does after
both lodes are patented, there exists a presumption
in favor of each that it had a valid discovery and lo-
cation at the date of entry, but there is no conclusive
presumption that the date of discovery or of location
claimed by the recorded location certificate upon
which the patent issued is the true date. — St. Louis
Co. v. Kemp, 11 M. R. 673; 2 Lindley, § 730, 783; Last
Chance Co. v. Tyler Co. 61 Fed. 557. Conclusive pre-
sumptions binding on all parties are fixed only where
the party to be bound has had opportunity to have
his day in court. — Uinta Co. v. Creede Co. 119 Fed.
144 . SIDE VEINS.
SIDE VEINS WITHIN LOCATION LINES
BEFORE MAY 10, 1872.
Congressional Bounty or Confirmation.
R. S. Sec. 2328. — Applications for patents for mining
claims under former laws now pending may be prosecuted
to a final decision in the General Land Office ; but in such
cases where adverse rights are not affected thereby, patents
may issue in pursuance of the provisions of this chapter ;
and all patents for mining-claims upon veins or lodes here-
tofore issued shall convey all the rights and privileges con-
ferred by this chapter where no adverse rights existed on
the tenth day of May, eighteen hundred and seventy-two. — -
Sec. 9, A. C. May 10, 1872.
Limited to Single Vein.
Under the original Congressional Act of 1866,
no vein except the first claimed was covered by the
location or conveyed by the patent.
A section of Colorado Territorial Act of Febru-
ary 9, 1866, attempted to donate to the locator all
veins within twenty-five feet of the center of the first
discovered lode; but that section is generally deemed
to have been in excess of the power of the Terri-
torial Legislature, in allowing to the claimant por-
tions of the public domain which he had neither dis-
covered nor appropriated.
A lode claim, therefore, located before May 10,
1872, originally covered but one vein, and a patent is-
sued before that date covered but one vein. — Blake
v. Butte Go. 9 M. R. 503; Eclipse Go. v. Spring, 59
Gal. 304.
Side Veins Donated to Old Claims Since 1872.
But by the A. C. of 1872, which gave to all new
locations and future patents the benefit of every-
thing between their side lines, it was added that all
old locations and all patents under the old Act should
have the same benefit, always saving any rights
SIDE -VEINS. 145
which had intervened before the passage of the Act
of 1872.— #. 8. § 2328.
The result of this Act is, that a location properly
made before May 10, 1872, or a patent issued before
that date, covers all side and other interfering veins
practically to the same extent, and as fully as loca-
tions and patents under the present law; always sav-
ing the exception in the section last above cited. —
Pardee v. Murray, 15 M. R. 515; Walrath v. Champion
Co. 63 Fed. 552.
SIDE VEINS WITHIN LOCATION LINES
SINCE MAY 10, 1872.
All Veins Apexing Within the Lines.
R. S. Sec. 2322. — The locators of all mining locations
heretofore made or which shall hereafter be made, * * -*
where no adverse claim exists * * * shall have the
exclusive right of possession and enjoyment of all the sur-
face included within the lines of their locations, and of
all veins, lodes, and ledges throughout their entire depth,
the top or apex of which lies inside of such surface-lines
extended downward vertically, * * * — Sec. 3, A. C.
May 10, 1872.
Colorado Act Conforming to Above Section.
M. A. S. Sec. 3156. — The location or location certifi-
cate of any lode claim shall be construed to include all sur-
face ground within the surface lines thereof, and all lodes
and ledges throughout* their entire depth, the top or apex
of which lie inside of such lines extended downward, ver-
tically, with such parts of all lodes or ledges as continue
by dip beyond the side lines of the claim, but shall not in-
clude any portion of such lodes or ledges beyond the end
lines of the claim or the end lines continued, whether by
dip or otherwise, or beyond the side lines in any other man-
ner than by the dip of the lode. — Sec. 9, Feb. IS, 187$.
Surface Lines and Apex Within Them Define the
Claim.
Under the law, as it has existed since May 10,
1872, with or without any State Statute like the
146 DEPARTURE FROM SIDE LINES.
above Colorado Act, which is only a concession to
tjie admitted force of the higher law of Congress, it
is clear that all veins whose tops or apices are within
the lines of the claim go with the lode which gives
the name to the claim; and the surface lines, rather
than identity of the veins, are made to control the
extent of the claim, and to fix the boundaries be-
tween adverse parties. — Book v. Justice Co. 58 Fed.
109; 17 M. R. — ; Doe v. Waterloo Go. 54 Fed. 935.
The possible exceptions to this general assertion
are:
First — In regard to what are commonly called
cross lodes; p. 138.
Second — Where the outcrops of two apparent
veins appear on two separate lines at the surface, but
in their downward course such veins dip into each
other, unite and form a single vein; p. 142.
Third — Instances where a location on the dip
may have cut off the right of a later appropriator on
the apex to follow beyond his side lines extended
vertically downward; p. 163.
Fourth — Locations and patents before May 10,
1872, where adverse rights had intervened so as to
prevent them from taking the benefit of the grant of
side veins under the Act of that date; p. 144.
Fifth — Lodes located before May 10, 1872, are
apparently excepted from the grant of an overlap-
ping patent. — Eclipse Co. v. Spring, 59 Gal. 304; but
see Lee v. Stahl, 16 M. R. 152.
One Set of End Lines for Side Veins.
See p. 166.
DEPARTURE OF LODE FROM SIDE LINES.
Statement of the Point.
That the vein, and not the surface, is the mate-
rial grant of a patent to a mining claim has never
been disputed; nor can it be denied that it is the
intention both of the purchaser in buying, and the
DEPARTURE FROM SIDE LINES. 147
Government in selling, to deal with the mineral de-
posit; the surface being, in itself, comparatively
worthless to either. And if the case lay between
the Government and the purchaser alone, this mani-
fest intention might prevent any attempt to confine
the party to an erroneous survey, giving him only
valueless surface, notwithstanding the material fact
that it is the patentee, and not the United States,
who has chosen the lines which produce the mischief.
— Patterson v. Hitchcock, 5 M. R. 542.
But it is the rights of innocent third parties,
holding claims beyond the located or patented side
lines, which has rendered this question so important,
and which must result in maintaining the consistent
construction already given to the Act of Congress,
confining every claim to its own lines; though even
if it were a matter of indifference, this holding re-
quires no forced construction of the Acts under ordi-
nary rules of interpretation, and had been the con-
stant ruling of the Appellate and Circuit Courts
before its confirmation by the Federal Supreme
Court.
Uniformity of Rulings on the Point.
This question, however, with singular unanim-
ity has been set at rest by the decisions of many
courts. It is now beyond controversy that the mo-
ment the apex of a vein leaves either side line of its
survey the locator has no further claim thereto, on
the strike, beyond such point of departure. — Wolfley
v. Lebanon Co. IS M. R. 282; Johnson v. Buell, 9 M.
R. 502; The Flagstaff case, 9 M. R. 607; The Golden
Fleece case (Nevada), 1 M. R. 120.
These decisions apply equally to patented and
unpatented claims, and have been universally ac-
ceded to as the only construction which would give
to a mining claim the same certainty of title which
belongs to other classes of real estate which are free
from the complications of dips and departures.
148 DEPARTURE PROM SIDE LINES.
Facts of the Golden Fleece Case.
The case from Nevada is singularly illustrative
of the injustice which would result from a contrary
holding.
The Golden Fleece Lode was surveyed and
staked in 1874, upon a vein supposed to run north-
west and southeast. The location claiming 1,500 feet
ran due northwest and southeast, and 600 feet width.
Afterwards developments by its workings and on the-
Leonard Lode, whose discovery was about 800 feet
to the southwest, showed that the vein really ran at
right angles to its originally supposed course, The
Leonard Lode having applied for patent, the Golden
Fleece made a second survey at right angles to the
first which of course embraced all the workings and
croppings on the Leonard, and then filed its adverse
claim, based on such relocation. But it was held
that The Golden Fleece must be confined to its orig-
inal location and to that part of the vein within the
lines of such original location.
Same Holding on Old 50-Foot Patents.
The patent in the Wolfley case was issued under
the Act of 1866, so that the decision necessarily ap-
plies to all patents; because the argument in favor
of following the vein, under the Act of 1866, was
much stronger than in the case of patents under
the later Act. — Lamed v. JenMns, 113 Fed. 634.
Not Color of Title.
In a later suit, upon the same patent construed in
the Wolfley case, it was held that where the patent
owner had followed his vein outside and had held it
adversely for five years, that he had not even such
"color of title" as would operate to allow him the
benefit of the statute of limitations. — Lebanon Co. v.
Rogers, 8 Colo. 34.
Surface Location Beyond Point of Vein Departure.
If the location fail to cover the vein, not only
is the vein lost after it leaves the side lines, but that
portion of the location which extends beyond the
DEPARTURE PROM SIDE LINES. 149
point where it loses the vein, has been decided to be
defeasible, if not void, having no discovery vein
upon which to base any further claim to either sur-
face or other veins which may lie within its lines.
— Patterson v. Hitchcock, 5 M. R. 542. See Plat, p. 25.
The reason of this decision is the wording of
the Act of Congress (§ 2320) restricting a lode
claim to a certain number of feet on "each side of
the middle of the vein" — so that if the vein is no
longer found within the lines of the claim the loca-
tor [has no basis upon which to hold any number
of feet, beyond the point of departure. Discarding
this language of the statute, the case of Watervale
Go. v. Leach, 33 Tac. 418; 17 M. R. — , holds that a
lode location need pay no attention to the strike and
the only consequence of failure to plant it on the
strike is to lose the right to follow on the dip.
The decisions on this point do not apply to pat-
ented claims; Argonaut Co. v. Turner, 48 Pac. 685; 18
M. R. — , and there is an initial presumption or
prima fades that the survey covers the vein until
the contrary is affirmatively proved. — Armstrong v.
Lower, 15 M. R. 631.
The reason that a patented claim is valid to its
full extent for what it does cover is that the patent
is of a "piece of land," with all the surface its lines
include; the patent is supposed to have been based
on a location made on a vein, with only the statutory
width on either side, and if in fact it was otherwise,
or if the vein departed before it reached the end line,
it is too late after patent for any adverse claimant to
set up any such variations to defeat the operation of
its grant to the entire surface and to such part of
the vein as it does cover. — Gleeson v. Martin White
Co. 9 M. R. 429.
150 VEIN WIDER THAN PATENT.
VEIN WIDER THAN PATENT.
In the unreported case between the Colorado
Central and the Equator Lode in the U. S. Court at
Denver, each claimed under a 50 foot patent, the
vein being admittedly 100 feet wide. The Court held
that the older patent, the Equator, could hold only
to its side line and could not claim extralateral
rights on its dip underneath the Colorado Central
Patent. In Bullion Co. v. Eureka Co. 11 Pac. 515
(Utah), the majority of the Court took the opposite
view.
In the late case of Empire Co. v. Bunker Hill Co.
114 Fed. 417, the Court held that where there were
two patents, one covering the hanging and the other
the foot wall, that the prior location had extralateral
rights and took the whole vein except, of course, the
segment within the vertical lines of the later loca-
tion. The case of St. Louis Co. v. Montana Co. 104
Fed. 664, which it cites, is to the same effect.
A discovery shaft may be the valid basis of a
location although it fails, being up to the edge of
appropriated ground, to cover the whole width of the
lode.— Larkin v. Upton, 144 U. S. 19; 17 Pac. 782.
LODES, VEINS AND LEDGES.
Definition of the Terms.
The word "lode" and the word "vein" are used
indiscriminately in the Acts of Congress* as well as
in the popular language, to signify the same thing.
In Bainbridge on Mines, the text, page 2, defines them
in the same sentence: "A mineral lode or vein is a
*See the text of Sec. 2320, p. 20', Sec. 2322, p. Itf.
LODES, VEINS AND LEDGES. 151
flattened mass of metallic or earthy matter, differing
materially from the rocks or strata in which it oc-
curs." A note to the same suggests the use of the
word "vein" as incorrect, when applied to such de-
posits as those of anthracite coal. Still the word
"vein" is universally used to include coal, and other
flat and non-metallic deposits, while the word "lode"
is not so used. This is the principal distinction in
the use of the words. The word "lode" is of Cornish
origin (Bullion Go. v. Croesus Co. 2 Nev. 176);
"vein" is Latin. In the Eureka case, 9 M. R. 578,
where it is said, every known definition was pre-
sented to the Court, the opinion does not intimate
any difference in their meaning, but says: "Those
Acts give no definition of the term 'lode.' They
use it always in connection with the term 'vein.' "
The word "ledge" came into use in California
after the discovery of quartz mines, because they
were generally found in the hills above the gulches,
and were often identified with protruding outcrop.
The word "reef," not used in the Acts, is the popular
equivalent for lode or ledge in Australia and South
Africa. The word "range" is much used in the lead
districts of the Mississippi valley. — Raisbeck v. An-
thony, 41 N. W. 72.
Connection With Context of the Statute.
The only limitation or qualification in the United
States Mining Statutes in connection with the words
"veins or lodes" or "veins, lodes and ledges," is the
expression "of quartz or other rock in place."
"In Place."
These words have been construed material in
cases where the vein has been found eroded or broken
up. In Stevens v. Williams, 1 M. R. 557, where both
the overlying and underlying bodies were solid, the
deposit was held to be a lode "in place."
In Tabor v. Dexter, 9 M. R. 614, where the loca-
tion was on ore where the overlying rock had been
eroded, the ore body remaining covered only with
wash or gravel, it was held that the lode was not. in
152 LODES, VEINS AND LEDGES.
place. A like ruling was made in Leadville Go. v.
Fitzgerald, 4 M. R. 380. The practical point in these
decisions is that where a location is claimed to be
upon the apex of a lode, it must be upon such apex at
a point where it is in place between the original en-
closing rocks to be valid as such an apex location
as will give a right to the dip.
Rock in place is contradistinguished from the
soil or debris. It is in place, though loose, broken or
disintegrated. — Jones v. Prospect Co. 31 Pac. 642.
Size and Richness of Deposit Not Material.
In North Noonday Co. v. Orient Co. 9 M. R. 531 ',
SAWYER, J., says: "A vein or lode authorized to be
located is a seam or fissure in the earth's crust filled
with quartz, or with some other kind of rock in place,
carrying gold, silver or other valuable mineral de-
posits named in the statute. It may be very thin
and it may be many feet thick, or thin in places —
almost, or quite pinched out, in miners' phrase — and
in other places widening out into extensive bodies of
ore. So, also, in places, it may be quite, or nearly,
barren, and at other places immensely rich. It is
only necessary to discover a genuine mineral vein
or lode, whether small or large, rich or poor, at the
point of discovery within the lines of the claim lo-
cated, to entitle the miner to make a valid location
including the vein or lode." Its validity as a thing
that may be located does not depend on what it runs.
— Shreve v. Copper Bell Co. 28 Pac. 315; Stinchfield
v. Gillis, 30 Pac. 839. Neither walls nor pay ore is
essential, but it must show rock distinguishable from
the country. — Burke v. McDonald, 33 Pac. 49. The
fissure must be defined. — Cons. Wyoming Co. v. Cham-
pion Co. 63 Fed. 540. On the facts in this case it is
too late to call one vein a spur and the other a main
vein. — Carson City Co. v. North Star Co. 73 Fed. 601.
There Must Be More Than a Trace of Mineral.
An ascertainable quantity — but an assay of one
or more ounces will suffice. — Stevens v. Gill, 1 M. R.
519.
LODES, VEINS AND LEDGES. 153
Whatever a Miner Would Follow with the ex-
pectation of finding ore, or similar phrases,
have been adopted as a practical test of
what is to be considered a lode under the Act of
Congress. — Eureka Co. v. Richmond Co. 9 M. R. 578;
Harrington v. Chambers, 1 Pac. 362. Any body or
belt of mineralized rock is a lode. — Book v. Justice
Co. 58 Fed. 106; Shoshone Co. v. Rutter, 87 Fed. 801.
Different Degrees of Proof.
In Fitzgerald v. Clark, 42 Pac. 283, the distinc-
tion is made between the proof sufficient upon which
to base a location and the proof required where the
continuity of the vein is in question, holding to
greater strictness in the latter case. The degree of
proof required, and the use of the words "consider-
able distance" or "considerable interval" in the con-
tinuity, in the instructions, is discussed in Butte Co.
v. Societe, 58 Pac. 111.
In Land Office Controversies the value of the min-
eral deposit is a matter immaterial to the govern-
ment save in controversies between mineral and
non-mineral claimants. — 21 L. D. 440.
Faults and pinches do not affect the legal contin-
uity of the vein. — Cheesman v. Shreeve, 40 Fed. 793.
The mineral beyond the fault is a part of the same
lode or range. — Raisbeck v. Anthony, 41 N. W. 72.
Show of Mineral by Seepage.
While the richness or poverty of the vein or of
the seam or stratum of rock followed as a vein, in
determining the question of such rock being vein
matter, is not of controlling importance, yet, on prac-
tical acquaintance with the subject, it will be seen
that such point of relative value cannot be wholly
ignored.
Where the opinions say that it may be rich or
poor, they refer to the well known fact that true
veins, for long distances, are often quite barren.
But it does not follow that every seam of rock which
will assay is necessarily any vein at all. For there do
154 LODES, VEINS AND LEDGES.
exist seams which carry a little mineral and yet are
not veins within the geological or legal definition.
The mineralization in such cases, in some of them at
least, is caused by infiltration of ore from a true
vein or deposit along some plane of cleavage, or
along the plane between two formations, or through
mere mechanical cracks in the rock, and all their
mineral is only precipitated or crystallized seepage
from the lode or deposit above. Such bastard veins
have just enough resemblance to true veins to be used
as a pretext of title against neighboring locations on
the legitimate vein. They are generally lacking in
walls, continuity and in the normal uniformity of
a true vein, and yet may have slips which are prac-
tically indistinguishable from walls, and have some
discolored matter and particles "of ore, just enough
to be dangerously similar to what is of value only as
it is unlike such things.
The question of vein or no vein in law, is, in
such cases, a fact to be determined by the jury under
the instructions of the court. — Iron-Silver Go. v.
Mike d Starr Co. 143 U. 8. 394; Blue Bird Co. v. Lar-
gey, 49 Fed. 289.
Mineral Bearing Zone.
A broad formation impregnated everywhere
with mineral, but traversed by true fissures within
itself, cannot be considered as the lode; the fissures
within such zone are the lodes and the zone is the
country. — Mt. Diablo -Co. v. Callison, 9 M. R. 616. Ore
distributed generally, though unequally, throughout
the entire mass of the limestone of the mountain does
not constitute a continuous lode such as may be
followed beyond the lines of its location. — Hyman v.
Wheeler, 15 M. R. 519. A belt of porphyry containing
mineralized seams is a lode. — Book v. Justice Co. 58
Fed. 106; Shoshone Co. v'. Rutter, 87 Fed. 801. When
a larger deposit is separated into distinct seams with
separate walls, each seam is a separate lode. — Doe v.
Waterloo Co. 54 Fed. 935; Hayes v. Lavagnino, 53
Pac. 1029.
LODES, VEINS AND LEDGES. 155
Ore in Pockets, Vugs or other irregular and dis-
connected occurrences without vein matter between
does not make a. lode. — Cheesman v. Snreeve, 40
Fed. 787. Nor ore bodies formed outside the fissure.
— Tombstone Go. v. Way Up Co. 1 Ariz. 426.
Where the Continuity of the Ore Body Is Broken
by the contact, becoming barren for a consider-
able distance, the legal extent of the vein ceases. —
Stevens v. Williams, 1 M. R. 557; Leadville
Co. v. Fitzgerald, 4 M. R. 380. A vein need
not be a straight line nor uniform in dip,
thickness or richness of ore. The enclosing cleft or
fissure may narrow or even close for a few feet and
be found further on. Its continuity may be proved
by following either the ore or the rock which carries
the ore. Slight proof of ore is sufficient where the
enclosing boundaries are distinct; there need be no
proof of such boundaries if the ore itself can be fol*
lowed. But if the vein disappear so far or so com-
pletely that it cannot be recognized when it is again
found or alleged to be found, there is no sufficient
proof of continuity. — Iron Silver M. Co. v. Cheesman,
116 U. S. 530', followed substantially in Hyman v.
Wheeler, supra, and in the Cheesman case, J^O Fed.
787.
All Deposits "in Place" Are Lodes.
The uniform ruling has been that all forms of
mineral or mineral gangue in place, whether fissure
or contact veins, or impregnations, or other irregular
deposits, should be construed to come within the ex-
pression "veins or lodes" used in the Act of Con-
gress, and as such to be subject to location and pat-
ent under the Act. — Hayes v. Lavagnino, 53 Pac.
1029. There has been in fact a concession that such
should be the holding rather than a contention to
the contrary. The substantial and contested point
has been whether a location or patent on certain
forms of deposit was entitled by virtue of including
the apex or so-called apex of the vein or deposit, to
follow the vein or deposit beyond the side lines un-
156 APEX.
derneath the adjoining ground or claims of other
parties. This point will be considered under the
next heading, APEX.
APEX.
The Grant of the Apex Right.
R. S. Sec. 2322. — "The locators of all mining loca-
tions * * * shall have the exclusive right of posses-
sion and enjoyment of all the surface included within the
lines of their locations, and of all veins, lodes, and ledges
throughout their entire depth, the top or apex of which
lies inside of such surface-lines extended downward ver-
tically, although such veins, lodes, or ledges may so far
depart from a perpendicular in their course downward as
to extend outside the vertical side-lines of such surface
locations."
Limitation to Planes of Projected End Lines.
"But their right of possession to such outside parts
of such veins or ledges shall be confined to such portions
thereof as lie between vertical planes drawn downward as
above described, through the end-lines of their locations,
so continued in their owTn direction that such planes will
intersect such exterior parts of such veins or ledges." — Sec.
S, May 10, 1872.
The mining Act of 1866 which was the first pro-
vision for advancing possessory claims to patent pro-
vided that the applicant should be granted "such
mine, together with the right to follow such vein or
lode with its dips, angles, and variations, to any
depth, although it may enter the land adjoining,
which land adjoining shall be sold subject to this
condition."
This clause has been construed to allow the right
to follow a lode patented under that Act at right
angles to the strike, without regard to end-lines. —
Argonaut Go. v. Kennedy Co. 63 Pac. 148.
The Act of 1872 made a material change by pro-
viding that the end lines of every lode claim should
be parallel and that these end lines protracted should
become bounding planes between which the proprie-
APEX. 157
tor of the apex should have the right to follow his
vein.
The theory of the Act was that a survey would
enclose a vein along its center line from end to end
and that the end lines would be at right angles
to the strike of the vein. But there are few loca-
tions where the miner is so fortunate as to place
his stakes so as to comply with such theory. The
course of the lode when located or when surveyed
for patent is generally a matter more or less of con-
jecture and even if known, the vicinity of prior
claims may interfere with the desired survey and
there being no requirement that the side and end-
lines must be at right angles it is found in prac-
tice that many difficult points arise upon some of
which by this time there is a satisfactory judicial
conclusion.
The common law grant of lands conveys the
surface and whatever minerals underlie the surface
within lines drawn perpendicularly downward to-
ward the center of the earth.
The apex clause in the act modifies the common
law by enlargement to the extent that the claimant
owns and may follow any lode whose apex he cov-
ers, beyond his side lines under land adjoining. On
the other hand he is not the owner of lodes found
within his lines extended downward vertically where
such lodes have their apexs outside of his surveyed
lines. — Roxanna Co. v. Cone, 100 Fed. 168.
Besides the right to follow his own vein on the
dip he is, under the common law grant of the pat-
ent, owner of the soil and rock within his lines
carried vertically downward.
This common law grant gives him the ownership
of any deposit of mineral belonging to a class which
has no apex and also of any lode which though it
have an apex, such apex is not located upon or is
surveyed in such form as to give no extra-lateral
rights to the proprietor of such exterior location.
158 APEX.
The above general propositions must be under-
stood with "reference to certain limitations and con-
ditions as follows:
The Lode Must Have An Apex.
The outcrop or edge of a vein or deposit is
not necessarily its apex. The typical or true fis-
sure vein is a narrow zone of ore-bearing rock de-
scending indefinitely in depth. It is essentially a
perpendicular formation, though always, or nearly
always, inclining some degrees from true; this in-
clination is called its dip. The bounding planes of
such vein are called its walls. The outcrop or near-
est approach of such a vein to the surface is, and
always has been, properly styled its apex. Such
were the veins generally known and worked on the
Pacific slope at the time of the passage of the Min-
ing Acts.
To give to such veins the right to their dip was
essential to their full use and enjoyment.
Other classes of veins are essentially horizontal
in their formation. If found to approach the per-
pendicular such fact is accidental, not incidental —
occasional and rare, not usual or normal. They may
be, like coal, a layer of rock itself constituting a
separate geological stratum; or they may be a fill-
ing between the planes of contact of two dissimilar
formations; or they may be impregnations diffused
irregularly through a broad zone. Such deposits are
called beds or even fields, terms obviously inappli-
cable to perpendicular deposits. Their upper bound-
ary rock is commonly and properly called the roof —
rarely the wall; and while they may have an out-
crop, such outcrop was never known among miners
as an "apex" until the use of such term in the
Mining Acts induced the attempt to abuse the term
by imposing it upon the outcrop of horizontal forma-
tions.
The term itself means the top or highest point,
and has no signification when applied to horizontal
deposits.
APEX. 159
In the case of Duggan v'. Davey, 26 N. W. 901
(Dakota), where an eight-degree vein having its out-
crop on the side of a hill was claimed throughout
its entire extent by those who had their location
upon the outcrop, the court ruled that such lode
had no apex and that a location on the dip, although
made after a location on the outcrop, was valid, and
that the outcrop claim could not follow beyond its
side lines.
The case of Gilpin v. Sierra Nevada Go. 23 Pac.
547, also intimates that blanket veins cannot claim
to have an apex under the Mining Acts. The in-
clines on the deposit in that instance as worked
ran from the surface up, instead of down.
In the Leadville and Aspen cases arising upon
veins of the character last above described, in the
United States Circuit Court at Denver, any such dis-
tinction as above made has not been recognized. But
the strict ruling on other points, that there should
have been no prior location on the dip; that the apex
location must be made on a vein in place, with solid
matter both above and below the vein, and the neces-
sity of having the apex parallel to the side, and
not parallel to the end lines, which is a practical
impossibility when the real deposit is a ' field, bed
or basin, with a more or less circular rim or out-
crop, have circumscribed and practically defeated
most attempts to follow such veins on their dip.
The strength of this position is increased by an
attempt to apply the apex law to such deposits as
the lead and zinc beds at Joplin, Missouri. There the
country for miles is underlaid by a stratum carrying
zinc and lead ore. The miner starts a shaft in the
open prairie without any indications whatever, of
mineral, and at a certain depth confidently expects
to pierce this ore-bearing stratum which is substan-
tially a flat underlying deposit, the outcrop of which
may be miles distant — if it have any outcrop at all
it is only when some bluff or ravine would expose
the edge of the bed at the surface. As to such de-
posits it is obvious that there is no such thing as
160 APEX.
locating a claim so many feet on each side of the
center of the vein, for, as the Department holds:
"The apex of the Lode is co-extensive with the side
lines."— 29 L. D. 689. In Iron 8. Co. v. M. & 8. Co.
143 U. 8. 894, the opinion refers to this distinction
and recognizes the validity of such blanket lode
locations, treating this incident of no apex proper as
an item of minor importance.
The End Lines Must Be Parallel.
When we claim the right to follow a vein on
its dip as it" leaves its side lines and plunges into
the earth it is obvious that we are at once deal-
ing with a third dimension rarely referred to in sur-
face grants. It is also obvious that unless this third
dimension is guided by parallel planes the claim will,
if the end lines diverge, extend indefinitely as it
goes down. If they converge, it would, like a wedge,
diminish to a line. The statute therefore in terms
requires end lines to be parallel and that require-
ment has no reasonable meaning except as taken in
connection with the right to follow the lode on the
dip. If, therefore, the locator fail or neglect to
make his end lines parallel he is in disobedience of
the terms of the Act, by either fault or misfortune,
and has no right to this statutory donation. It
was so ruled in Montana Co. v. Clark, 16 M. R. 80,
where the claim was surveyed as a triangle which
could not geometrically have two parallel lines. The
same in the Elgin case, 15 M. R. 641, which had a
survey in the shape of a horseshoe. In both these
cases the reason for the parallelism of end lines is
fully stated.
The Eureka case, 9 M. R. 578, has been cited
(Hor -swell v. Ruiz, 15 M. R. 489) as ruling that the
requirement of end lines is directory merely and
that no consequences attach to its neglect, but the
further details of the opinion (on page 596) much
qualify the words to that effect used on page 593.
We can see no reason why a survey without parallel
end lines should be void for the ground within its
APEX. 161
lines, nor can we conceive that it should be allowed
extralateral rights if it do not have end lines sub-
stantially parallel. But the case of Doe v. Sanger, 23
Pac. 365, decides in terms that the end lines need
not be parallel and that they do not affect the right
to follow the lode on the dip for the weakest of all
reasons in statutory construction, to wit: because
the requirement of parellelism and the grant of the
dip are contained in two different sections of the
Mining Act.
It is evident from the language used and the
plats in Walrath v. Champion Co. Ill U. 8. 294, in
the Stone Lode case, 15 M. R. 641, and other decisions
that practically a lode may be surveyed in any shape
which a locator chooses to give to his lines.
That there is no requirement that every claim
be substantially a parallelogram or must have two
endlines and two sidelines. But no such irregular
survey has ever been allowed extralateral rights ex-
cept in the case of Doe v. ganger, supra. Such a lo-
cation is good for its surface ground and for such
parts of veins (not held by location on the apex out-
side) as may be found within its vertical planes.
Crown Point Co. v. Buck, 97 Fed. 462.
Converging End Lines.
In the Carson City case, 73 Fed. 597, end lines
which would ultimately meet like a wedge were al-
lowed to be protracted. The patent in this instance
perfected locations made prior to the Act of 1872,
and the court held that parallelism of the end lines
was not required under the Act of 1866.
The Lode Crossing Both Side Lines.
In the case of Flagstaff Co. v. Target, 9 M. R.
607, the Supreme Court of the United States at an
early date held where the lode crossed from side line
to side line at practically a right angle to its survey,
that in such case the side lines became end lines,
that is to say: They passed down through the lode
vertically and cut off all extralateral rights. This
decision has been uniformly followed in all cases
162 APEX.
where the lode has been found to leave its located
or patented area through both side lines. — King v^
Amy Silversmith Go. 152 U. 8. 222; Argentine Co. v.
Terrible Co. 122 U. 8. 478; Parrot Co. v. Heinze, 64
Pac. 326.
The Lode Leaving One Side Line.
After much greater contention than in the in-
stance of the lode crossing from side line to side
line, it has now been repeatedly held that where the
lode leaves the claim through one end line and one
side line it preserves its extralateral rights, to wit:
the right to follow the vein on its dip from the end
line to the point on the side line where it also leaves
the claim. Such end line is protracted vertically
downward and produced on its course to form a
bounding plane and the other bounding plane is
found by protracting and producing another line
parallel to the end line plane across the claim at the
point where the vein goes out. Last Chance — Tyler
case, 54 Fed. 284; 61 Fed,. 557 ; Cons. Wyoming Co. v.
Champion Co. 63 Fed. 540; Del Monte and Last
Chance case, 66 Fed. 212; 171 U. S. 56; Clark v. Fitz-
gerald, 171 U. S. 92; Carson Vity Co. v. North Star
Co. 73 Fed. 597.
Divergence from Same Side Line Twice.
In Catron v. Old, 48 Pac. 687, 18 M. R.—, the Pul-
ton survey had an angle in the center making it a
V shaped claim; crossing the diverging halves the
lode left the location twice through the south side
line, the diagram of the conflict being as follows:
APEX. 163
The Supreme Court of Colorado held that the
Fulton Lode had no right to follow the vein upon
the dip into any ground beyond its side line carried
down vertically, and the correctness of such ruling
could not be seriously disputed under the authority
of the Amy -Silver smith Case.
Discovery on the Dip.
In Van Zandt v. Argentine Co. 4 M. R. 441, it was
held that a prior discovery on the dip would hold
against a junior discovery on the apex above. It is
also obvious that all tunnel discoveries must neces-
sarily be made on the dip and their validity has never
been doubted. Jones v. Prospect Co. 31 Pac. 642.
Where the width of the claim is sufficient to allow
the apex to be within the side lines all doubt on the
point ceases, but where the vein discovered on the
dip apexes in foreign ground it is argued that it
never becomes the property of the locator; that
though he may rightfully plant his discovery shaft
on the dip he must so locate as to cover the apex
above the point of discovery with his survey. — Lind-
ley on Mines, § 364.
The case is stronger for such a discovery after
patent, for there then arises a presumption that the
patent was based on a valid discovery. If there be a
valid discovery the patent should certainly convey
the vein upon which such discovery was made; and
the equity of the case in favor of such an instance,
whether location or patent, is to urge strongly
against such close construction as would deprive the
discoverer of his asserted rights.
In Colo. Cent. Co. v. Turck, 50 Fed. 888; 54 Fed.
262, a junior patent was allowed to take the vein on
the dip underlying a patent whose discovery shaft
was on the same vein, but the vein of which was as-
sumed to leave the side lines, though it dipped back
and remained between them carried vertically down-
ward.
164 APEX.
The Common Law Grant of the Patent. Veins
Cut Within the Lines, Apexing Outside.
The literal grant of a patent issued under the
Mining Acts reads as if it conveyed all veins apex-
ing within the lines and excluded all those whose
apexes are outside. And such is its clear meaning
where a prior location has covered the apex of such
veins found to dip underneath a junior claim. But
where in sinking, veins or deposits are found which
have either no apex, or an apex not located upon out-
side, or an apex not located upon at the date of the
patent under which such veins or deposits are found,
to whom do such veins or deposits belong?
The decisions have with great uniformity held
that such new discoveries presumptively belong to
the patentee and refuse to give a literal construction
to the patent. The case is fully stated and the point
ruled in Doe v. Waterloo Go. 54 Fed. 935, following
Duggan v. Davey, 26 N. W. 887; Leadville Co. v. Fitz-
gerald, 4 M. R. 385.
In Montana Co. v. Clark the ruling was made
that such veins apexing outside, but not located out-
side, remained still the property of the United
States.— 16 M. R. 80.
This ruling is theoretically correct and such vein
or part of a vein would become the estate of any
locator who made a proper location upon such apex
outside. But it often happens that all the surface
ground has been taken up in such form that while
the apex is covered it is covered in such shape as
to allow no extralateral rights and where such is
the case the portions of the vein in such position
belong to the party whose survey includes them
within the vertical planes of his side and end lines. —
Parrot Co. v. Heinze, 64 Pac. 326; State v. District
Court, 65 Pac. 1020.
APEX. 165
Exception of Such Veins in Favor of Proprietor
of Other Lodes.
In Pacific Coast Co. v. Spargo, 16 M. R. 75,
and Amador Co. v. South Spring Co. 36 Fed. 668,
it was held that the exception of veins apexing out-
side, in favor of the proprietors of such veins, should
be confined to instances where the rights of such
proprietors were in existence at the time of the
grant to the patentee whose claim was underlaid by
such veins. But the tendency of all the recent de-
cisions does not recognize this distinction, but treats
the exception as one standing for the benefit of fu-
ture as well as present proprietors. — Turck case,
supra; Cheesman v. Hart, 16 M. R. 263.
An Owner May Amend His Survey, even after
patent applied for, to keep his vein within
his shortened claim, by making a new end line and
dropping that portion into which no vein extends. —
Last Chance Co. v. Tyler Co. 61 Fed. 557. And may
amend to correct diverging end lines. — Doe v. San-
ger, 23 Pac. 365. In both these instances the amend-
ments were allowed after other claims had been lo-
cated based on the supposed effect of the original er-
ror upon the rights of parties to adjoining ground.
But the right so to amend and thereby affect rights
intermediately vested in third parties is extremely
questionable.
Apex Covered by Several Patents.
Where there are several contiguous patents the
dip-right of each must be treated as a separate grant.
The two patents cannot be considered together so
as to treat them as if they were one patent enclos-
ing the apex of the vein. — Del Monte Co. v. New York
Co. 66 Fed. 212. On the other hand in Carson City Co.
v. North Star Co. 73 Fed. 598, where the owner of
several irregular locations had patented them to-
gether they were treated as one claim, enlarging to
extreme limits the doctrine of Smelting Co. v. Kemp,
11 M. R. 673, where the distinction is made between
a location and a claim.
166
APEX.
There Can Be But One Set of End Lines, for all
the veins covered by the patent. And where
departure from one or both side lines renders it
material, only the discovery vein can be used to
determine what are the planes of the end lines. —
Walrath v. Champion Co. Ill U. 8. 293; Cosmopoli-
tan Co. v. Foote, 101 Fed. 518; St. Louis Co. v. Mon-
tana Co. 104 Fed. 664.
Relation of End Line to Strike.
The extralateral rights being defined by extend-
ing the end lines as parallel vertical planes, it is
apparent that unless the end lines are at an exact
right angle to the vein, which they rarely are, the
grant of the patent is not the grant of the right to
follow down on the dip, underneath the same feet of
apex enclosed. On the contrary there must be a
gain in one direction and a corresponding loss in the
other. The following diagram will illustrate this.
The Senior and Junior lodes above are on the
same vein, the Senior located obliquely to the apex.
The Junior is correctly laid on the strike of the vein.
The Senior is the older patent. By the dashed lines
— — — the Senior loses the bottom of its own
APEX. 167
shaft and cuts off the shaft of the Junior lode. The
dotted lines and the shafts, of course, are at
right angles to the strike of the vein.
Right to the Vein Within the Four Vertical
Planes.
Although where the lode crosses from side line
to side line it loses its extralateral rights, the claim-
ant has a certain compensation by being allowed to
follow on the dip to his end line.
Where a dipping lode crosses from side line to
side line, in following it down, it is obvious that two
shafts sunk on the vein at the two points where it
leaves the side lines will inclose between them all
that part of the vein the apex of which is within the
patent— Lode Y, Plat X, p. 169.
The right to the part of the lode between such
two shafts in going down is lost as soon as the ver-
tical plane of the south side line is reached. This is
the ground marked B on Plat X. The vein below on
B he does not own. On the other hand, he retains
all of C, which is the vein within the vertical planes
of his side and end lines.
A patentee following down on the dip cannot
take the vein where he finds it between vertical side
and end lines of a prior location whose vein crosses
both its side lines. Tyler Co. v. Last Chance Co. 71
Fed. 848; 157 U. 8. 684; Argentine Co. v. Terrible Co.
122 U. 8. 478. i
Following Lode Beyond End Line.
In the Flagstaff Case, the Federal Supreme Court
use this language: "The side lines of the location
are really the end lines of the claim." In Last Chance
Co. v. Tyler, 157 U. 8. 687, it says "the side lines of
that location become the end lines and the end the
side lines." The use of this expression is far from
holding that extralateral rights may be pursued be-
yond the end line. In neither of these cases was the
'ground actually in controversy beyond the end lines
of any of the claims in dispute, so that the expres-
sions quoted are only dicta in both instances.
168 APEX.
The. grant of a patent is of a piece of land with
an extralateral grant upon a certain condition, to
wit: that its lines enclose the apex of a vein, which
vein extends "outside the vertical side lines" of its
survey. If its lines enclose such apex from end line
to end line or from end line to side line, the condition
exists and its extralateral right is established.
In the proposition that where it has a vein going
through both side lines it can follow such vein be-
yond its end line there is no assertion of a condition
which, having been fulfilled, some right accrues as
the incident to the compliance with the condition.
The statute expressly gives the right to go be-
yond the side line upon the existence of the condi-
tion; it does not give such right to go beyond an
end line. Nor is there any known principle of law
which would enlarge a grant in derogation of the
common law, and therefore to be strictly construed
— by allowing the grantee who fails to come within
the terms of the conditions of his grant to be com-
pensated out of other lands upon the supposition of
an implied condition to that effect.
And yet the contrary is strongly contended for
(Lindley, § 589), and in the only suit where the
point has directly arisen, a case arising on an ore
contract made in Arizona and sued on in Connecti-
cut, the holding was made that the vein could be
pursued beyond its end line. — Empire Go. v. Tomb-
stone Co. 100 Fed. 910.
Also, in Bunker Hill Co. v. Empire Co. 109 Fed.
538, the point was conceded to the same effect, but
in that case all the claims involved were surveyed
squarely across the strike, so that neither had any
status as to the ore in contention unless it was so con-
ceded.
Recapitulation — Explanation of Plat X.
The plat on page 169 will illustrate several of
the instances above mentioned. It represents a vein
covered by a location from end line to end line, by
another location where the vein crosses from side
APEX.
169
170 APEX.
line to side line, and a third location where the vein
crosses one end line and one side line. The dip of
the vein is to the south, that is, to the foot of the
plat
The X location owns, of course, its entire sur-
vey and may follow the vein on its dip between
its vertical end lines extended downward indefi-
nitely.
Y owns the vein in the triangle A. He does
not own B. On the other hand, he does own C;
being that part of the vein between his vertical side
and end lines, unless X is the older location, in which
case he loses to X the greater part of C.
As to whether Y has any estate in D, being the
extension of his vein beyond his end line, is the ques-
tion discussed on page 168.
Z, whose vein leaves one end line and one side
line, is the owner of the parcel E, and the parcel F,
the vein on the dip, to the extent of his extralateral
rights. He cannot follow into G. The vein in G
becomes the property of whoever may disclose and
locate the apex in the vacant ground between Y
and Z.
Presumption — Burden of Proof.
The presumption, where a miner is found be-
yond his side lines, is against him. He is prima
facie a trespasser till he has shown that he gets
there by following the lode on its dip from its apex
within his lines. — Cheesman v. Shreeve, 16 M. R. 79;
Blue Bird Go. v. Murray, 23 Pao. 1022; Bell v. Skilli-
corn, 28 Pac. 768; Cons. Wyoming Co. v. Champion
Co. 63 Fed. 540; Iron 8. Co. v. Campbell, 17 Colo. 267;
Dugan v. Davey, 4 Dak. 110; Leadville Co. v. Fitz-
gerald, 4 M. R. 380; Doe v. Waterloo^ Co. 54 Fed. 935;
Maloney v. King, 64 Pao. 351.
But the fact that the owner is claiming extra-
lateral rights does not prevent the application of the
presumption that his surface bounds include his vein
in such a manner as to entitle him to extralateral
DIP. 171
rights. — Wakeman v. Norton, 24 Colo. 192. But the
proof of the continuity of the vein downward must
be made. — Butte Co, v. Societe, 58 Pac. 111.
DIP.
Dip is a proper mining term and has a plain and
important signification. It means the line of depar-
ture of a lode from the perpendicular. The number
of degrees may of course be calculated from either
the perpendicular or from the horizontal, and the
usage with professional surveyors is to calculate the
degrees from the horizontal, but miners generally
speak of a lode as dipping so many degrees from the
perpendicular, especially when referring to lodes
worked by shafts. It is used along with "angles
and variations," in the A. C. 1866, and is with those
words omitted in the A. C. 1872, but its place is
supplied by the phrase (§ 2322):
"All veins, * * * throughout their entire depth,
* * although such veins, * * *. may so far depart
from a perpendicular in their course downward as to ex-
tend outside the vertical side-lines, of such surface loca-
tions."
The term is to so great an extent associated with
the terms APEX and DRAINAGE that it has been neces-
sarily to a large extent considered under those heads.
Practical Effect of Dip to Carry the Lode Away
from Its Surface Lines.
A lode dipping to the north will gain horizon-
tally to the north about 1.7 feet in 100 feet of descent
for each degree from the vertical.
A shaft sunk upon a dipping vein will, in 100
feet depth, measured along the dip, acquire the fol-
lowing vertical depths and horizontal departures
from the top of the shaft for the following angles, all
taken from the horizontal.
172 DIP.
ANGLE VERTICAL HORIZONTAL
DEPTH DEPARTURE
10° 17.4 feet 98.5 feet
20° 34.2 " 94.0 "
30° 50.0 " 86.6 "
40° 64.3 " 76.6 "
50° 76.6 " 64.3 "
60° 86.6 " 50.0 "
70° 94.0 " 34.2 "
80° 98.5 " 17.4 "
90° 100.0 " 0.0 "
Cubic Incidents of Lode Claims.
From the outstart it should be kept in view that
a lode claim is a solid body of ground and not a
"superficies." — Massot v. Moses, 8 M. R. 608. Dip
is only one of the incidents of this fact. A placer or
even a coal bed furnishes few analogies to define the
rights of a claim which leaves the surface at once
and follows its own course, governed only by its
natural but invisible boundaries.
Estate in the Dipping Lode.
Since the dip may carry a lode under the side
lines of an adjoining claim, the right to follow such
a lode must indicate either: First — An easement to
which the adjoining claim is subject, or, rather, Sec-
ond— An exception out of the estate of the adjoining
claim. The maxim that ownership extends from the
surface to the center of the earth in vertical lines,
in either event, therefore, does not apply; the claim
in its downward course is governed by the dip of the
vein whose apices appear at the surface; it extends
under the vertical side lines of the adjoining claims
on one side, and on the other side it leaves veins
pitching under its own side lines as the property of
him who is their owner at the surface. — Iron Silver
Co. v. Cheesman, 116 U. 8. 530.
Where a lode cut in a tunnel has a dip it will
be assumed that it carries the same dip to the sur-
face.— Brewster v. Shoemaker, 63 Pac. 309.
DIP. 173
The Side or Auxiliary Veins, whose apices may
be within the side lines of the claim or pat-
ent have the same right to the dip as has
the principal or discovery vein. — Jupiter Co. v. Bodie
Co. 4 M. R. 412; Walrath v. Champion Co. 63 Fed. 552.
No Apex — No Dip.
Any located or patented claim which has been so
surveyed that its vein runs practically at right angles
to the side lines cannot claim the dip beyond its side
lines.— The Flagstaff case, 9 M. R. 607; McCormiclc
v. Varnes, Id. 506; Argentine Co. v. Terrible Co. 122
U. 8. 478, and cases cited under APEX.
Effect of End Lines.
The end lines of all lode claims are required to
be parallel; and where the lode in its descent reaches
the end lines protracted, the claim ceases and the
dip cannot be followed across the protraction of
the end lines. — Richmond Co. v. Eureka Co. 9 M. R.
634; Stone Lode case, 15 M. R. 641. To allow the end
lines to diverge is to allow the claimant an ever
increasing lineal extent of vein as he descends.
Page 160.
When the Grantor Conveys a claim or part of a
claim he conveys the right to follow on the dip all
veins apexing within the granted ground. — Stinch-
fteld v. Gillis, 30 Pac. 840; 40 Pac. 98; Boston Co.
v. Montana Co. 89 Fed. 529. This would seem self-
evident in a conveyance of the entire claim or of
a claim divided across from side line to side line.
But in every mining deed the dip right should be
mentioned in express terms.
174 WALLS.
WALLS.
Defined.
In a contact vein the roof or hanging wall is the
plane of the contact above; the floor or foot wall is
the- plane of the contact below. In fissure veins
the walls are the plane of demarcation between the
country and the gangue.
Relation to the Country.
It should seem almost self-evident that the na-
ture of the wall must depend upon the nature of
the country rock and the nature of the material
which it encloses. Between certain rocks the plane
of separation would be distinct and traceable; be-
tween other rocks a diffusion of the oxides and min-
erals of the enclosed material through the adjoining
country, would obliterate more or less all trace of
the original plane of division. Where this plane
of division is manifest to the eye there is what
miners call a wall — where it has become obliterated
they say there is no wall. It is therefore manifest
that the fact of the absence of one or both walls, is,
in itself alone, no proof of the non-existence of a
vein, they being a mere accidental circumstance.
And it has been so decided in the Lime Lode case,
116 U. 8. 530, and in the Durant case, 15 M. R. 519.
In the former decision, after defining what consti-
tutes a lode as "a body of mineral or mineral-bearing
rock within defined boundaries," MILLER, J. adds:
"In the existence of such body and to the extent of
it, boundaries are implied." In the latter case, in
such language as would be used by a lawyer thor-
oughly familiar with the subject matter, HALLETT J.
says: "It is true that a lode must have boundaries,
but there seems to be no reason for saying that they
must be such as can be seen."
SPURS. 175
Broken Ground — Slips — Natural Cleavage.
It is also evident that subsequent 'disturbance
of the vein matter would tend to destroy the con-
tinuity of the wall; and in many classes of rock the
natural cleavage is such as often to be mistaken for
and followed as a wall. In such ground a very little
manipulation may be made to show an apparent
wall where none, in fact, exists.
Disappearance of Wall.
It is nevertheless true that where a wall has
shown itself for some distance and disappears — that
is an important item to be considered where the fur-
ther continuity of the vein is made doubtful by
reason of the simultaneous disappearance of the min-
eral and an apparent change in the rock which is
being followed. See page 1$.
Wall or Side of Working.
It is also to be observed that the term "wall"
is often used with reference to the actual side of
a drift, shaft or other working without reference
to ita association with the vein, and finding mineral
by "cutting through the wall" is spoken of as if it
implied no contradiction of terms.
SPURS.
The word spurs is not found in any of the Acts
of Congress nor in the patents issued under them.
It is a dangerous term, because its meaning is rela-
tive, not definite. That which, when first discovered,
may be called a spur, may prove to be a better de-
veloped vein than the lode from which it strikes off.
But the term found its way into the Colorado
Territorial Act of 1866, and is seen in most records;
when properly applied it signifies a feeder to, or off-
shoot from, a lode. As such it is part and parcel of
the lode, at least as far as the side lines of the claim,
176 ANGLES AND VARIATIONS.
and if it extended much further, it could hardly be
called a spur.
A spur is defined (Bainbridge, p. 2, note,) as "A
lateral branch from the main lead, not returning to
it, but losing itself in the surrounding soil."
Though called a spur (which word is apt to be
used as a slurring term) it is in law a lode upon
which a valid title may be founded if it do in fact
show such "well-defined crevice."
Where repeated locations have been made upon
a mineral vein it is too late to call it a spur, espe-
cially where the law fixes no limit to the size of the
vein which may be located, nor admits comparison
of different size between conflicting locations. — Car-
son City Co. v. North Star Co. 73 Fed. 601.
When the discovery or existence of a lode is in
contention, its size, strength, continuity and other
like incidents are questions of fact to be found by
the jury. — Blue Bird Co. v. Largey, 49 Fed. 289; Book
v. Justice Co. 58 Fed. 106.
Ore bodies formed off from the fissure do not
form separate veins. — Tombstone M. Co. v. Way Up
Co. 1 Ariz. 426.
ANGLES AND VARIATIONS.
Use in Statutes and Conveyancing.
In § 4, A. C. 1866, the words "angles and varia-
tions" were used, and under that Act a lode was pat-
ented with its "angles and variations." They are
neither law terms nor technical mining expressions,
but are supposed to cover the digressions of a lode
from a straight line, and might be extended to
"faults." In arguing the important question arising
upon patents under the old law when the vein left
the side lines, these words were strongly urged as
ANGLES AND VARIATIONS. 177
indicating the intention to pass the vein as the essen-
tial grant of the patent. These words, or like terms,
are in common use in the phraseology of mining
deeds (Bullion Co. v. Crcesus Co. 5 M. R. 257) but are
not words of essential description.
Irregular Surveys With Unnecessary Angles.
A lode may and should be surveyed to cover all
its angles. But acute angles such as were attempted
in the Stone Lode, leading to fantastic figures,
widely different from the parallelogram intended in
the Act of Congress, even if they have two parallel
courses which they call end lines, run a risk of being
ruled out of any right to claim beyond their side
lines. In other respects they may be wholly valid if
the end lines are regular and the statutory width
and length are not exceeded. — Iron Silver Co. v. El-
gin Co. 15 M. R. 641; 118 U. S. 200,.
Whether the presumption allowed in ordinary
cases (Armstrong v. Loiuer, 6 Colo. 582) that the sur-
vey covers the vein would be indulged to a claim
which has acute angles may be doubted. Such pre-
sumption is merely to fix the party on whom is the
burden of proof, and on an angled claim ought to
yield to very slight evidence.
Angles to Allow for Slope.
But where the lode has a pitch and is located
on rising ground, especially where it crosses the
saddle of a mountain or passes through a deep gulch,
an angle or angles ought sometimes to be made, the
direction of which will depend upon the dip of the
lode, whether into or out of the mountain, and the
extent of which will depend upon the degree of the
dip. Such allowances are not called for where the
location is on level ground nor even on rising ground
if the lode runs directly up and down hill; but are
essential under conditions familiar to surveyors and
to experienced prospectors, in order to keep the apex
fairly between the side lines. See page 172.
178 DRAINAGE.
DRAINAGE.
Legislative Control.
Sec. 3. — The general assembly may make such regu-
lations, from time to time, as may be necessary for the
proper equitable drainage of mines. — Colo. Const. Art. XVI.
Under the above authorization M. A. S. §§ 3172-
3180, attempt to regulate this subject. Such State
control is also recognized in section 2338 of the U. S.
Statutes.
But the subject itself is one of inherent difficulty.
The Act seeks to provide that where one mine drains
another, the mine thus benefited shall pay its propor-
tion of the cost of drainage. Where a tunnel or lower
adit drains another mine, it is doubtful whether such
Acts have any application, as such drainage is only
incidental. — Baird v. Williamson, 4 M. R. 368; Town-
send v. Peasley, 2 M. R. 612. But where one mine
hoists the water of another a natural equity is more
apparent, and statutes in aid of contribution, even
giving a royalty to the draining mine, have been en-
forced.— Ahren v. Dubuque Go. 5 M. R. 144.
Coal Mines.
Where in case of veins or deposits of the class
represented by coal beds, one mine lies under the dip
of another mine at a higher level, it is under servi-
tude to the water flow of the mine above. — Philadel-
phia Co. v. Taylor, 5 M. R. 133.
Servitude of the Lower.
In lode mines the same rule applies — that the
lower workings must stand the water from the higher
pits, subject to such regulations as the Drainage Act
supplies, where such an Act exists and its provisions
can be enforced; and the upper mine cannot wan-
tonly cast its water on the lower. — Locust Co. v. Gor-
rell, 5 M. R. 129. The same rule applies to quarries. —
Ulmer v. Farnsworth, 15 Atl. 65.
DITCHES AND WATER. 179
DITCHES AND WATEK.
Congressional Recognition of Easements.
R. S. Sec. 2339. — Whenever, by priority of possession,
rights to the use of water for mining, agricultural, manu-
facturing, or other purposes, have vested and accrued, and
the same are recognized and acknowledged by the local
customs, laws, and the decisions of courts, the possessors
and owners of such vested rights shall be maintained and
protected in the same ; and the right of way for the con-
struction of ditches and canals for the purposes herein
specified is acknowledged and confirmed ; but whenever any
person, in the construction of any ditch or canal, injures
'or damages the possession of any settler on the public do-
main, the party committing such injury or damage shall
be liable to the party injured for such injury or damage. — •
Sec. 9, A. C. July 26, 1866.
Excepted in Patent.
R. S. Sec. 2340. — All patents granted, or pre-emption
or homesteads allowed, shall be subject to any vested and
accrued water-rights, or rights to ditches and reservoirs
used in connection with such water-rights as may have been
acquired under or recognized by the preceding section. —
Sec. 17, A. C. July 9, 1870.
Claims Subject to Ditches, Flumes and Trails —
Parol License.
M. A. S. Sec. 3158. — All mining claims now located or
which may be hereafter located, shall be subject to the
right of way of any ditch or flume for mining purposes, or
of any tramway or pack trail, whether now in use or which
may be hereafter laid out across any such location ; Pro-
vided, always, That such right of way shall not be exercised
against any location duly made and recorded, and not aban-
doned prior to the establishment of the ditch, flume, tram-
way or pack trail, without consent of the owner, except by
condemnation, as in case of land taken for public highways.
Parol consent to the location of any such easement ac-
companied by the completion of the same over the claim
shall be sufficient without writings ; And Provided further,
That such ditch or flume shall be so constructed that the
water from such ditch or flume shall not injure vested
rights by flooding or otherwise. — Feb. 13, 187%.
180 DITCHES AND WATER.
Besides the Act of 1866, above printed, Congress
allows right of way to ditches, tramways, reservoirs
and power lines over the public lands by Act of 1895
and its amendment. — 28 St. L. 635; 29 Id. 120; 30 Id.
404.
The Right of the Miner to Divert Water from its
natural stream, in opposition to the common law,
has been not only granted under the Act of
Congress of 1866, but that Act has been construed
by several decisions of the Supreme Court of the
United States. — Atchison v. Peterson, 1 M. R. 583;
Basey v. Gallagher, Id. 683; Jennison v. Kirti, 4
M. R. 504.
These decisions further recognize the right of
"appropriation," as it is called, as a necessity in
placer mining districts. The party who first appro-
priates the water for mining purposes, obtains the
right both as to parties who attempt to take it by
tapping the stream above, or who need it in the
stream below. A homestead or other entry is sub-
ject to the rights of a prior appropriation of water.
— South Yuba Co. v. Rosa, 22 Pac. 222; Tynon v. Des-
pain, 22 Colo. 240.
Incidents of Water Appropriation.
A ditch is an easement over the land which it
crosses. — Quinlan v. Noble, 75 Gal. 250. A party can-
not locate a ditch in such a manner as to prevent
the practical mining by hydraulic power, or other-
wise, of claims which it crosses; nor so as to cut off
the water used by the hydraulic. When ditch crosses
ditch, the later claimant must adjust the crossings
so as not to interfere with the full use of the prior
ditch.— Jennison v. Kirk, 4 M. R. 506.
Appropriation by Placer Location.
It has been lately held that a placer location is
of itself an appropriation of all the water flowing
across it to the extent needed for working it. —
Schwab v. Beam, 86 Fed. 41. This is an extreme
holding on what seems to us a very doubtful posi-
tion.
DITCHES AND WATER. 181
The Change of Locality where the water is used
does not forfeit the right. — Maeris v. BicTcnell, 1 M.
R. 601. He may change either the point of diver-
sion or the place of use. — Strickler v. Colorado
Springs, 26 Pac. 314. If he has prior right to the
water he may take it by a new and different ditch. —
Jacob v. Lorenz, 33 Pac. 120; Greer v. Heiser, 16
Colo. 306.
Where a party has appropriated water for the
purpose of working particular mining claims, after
he has worked out the same he may extend his ditch
and work other claims, or use the water for a dif-
ferent purpose, without losing his priority of right,
even against a party who had dug a ditch and appro-
priated water from the same stream before the first
claims were washed out. — Davis v. Gale, 4 M. R. 604-
But where water has been used and returned to
the stream and been appropriated after its return,
the upper appropriator cannot, by changing the line
of his ditch, destroy the intervening appropriation
below him. — Last Chance Co. v. Bunker Hill Co. 49
Fed, 430.
Using Gulch or Creek for Channel.
A party may use the bed of a natural stream as
his means of conducting water added to it by a
ditch, without being considered as abandoning the
water by mingling it with the original waters of the
stream.— Butte Co. v. Vaughn, 4 M. R. 552; Oppen-
lander v. Left Hand Co. 18 Colo. 142.
Location of Ditch Eight.
At the point where water is taken from the
stream, post notice as follows:
DITCH NOTICE.
MIDLAND DITCH. — I claim 50 inches of the water of
this stream, to be taken by ditch from this point to claims
on Wightmaris Gulch, in Summit Mining District, Rio
Grande County, for mining purposes.
January 17, 1903. ALEXANDER G. COCHRAN.
Posting this notice, at least when accompanied
by collateral acts showing intention to follow up,
182 .DITCHES AND WATER.
gives a reasonable time to begin the ditch. — Dylte v.
CaUwell, 18 Pac. 276.
LOCATION CERTIFICATE OF DITCH AND WATER RIGHT.
TO ALL WHOM THESE PRESENTS MAY CONCERN : KnOW
Ye that I, Alexander G. CocTiran, of St. Louis, in the
State of Missouri, do hereby declare and publish as
a legal notice to all the world that I have a valid
right to the occupation, possession and enjoyment of
all and singular, that tract or parcel of land lying and
being in Summit Mining District, in the County of Rio
Grande, in the State of Colorado, for ditch and mining pur-
poses, bounded and described as follows, to wit : — The Mid-
land Ditch: Head of ditch tapping the waters of the Ala-
mosa River at a point indicated by notice there posted on
the right bank abont one mile above Summitville, 100 yards
southwest from cabin occupied ~by Jacob Ellison, and 110
feet northeast from tree blazed with letters "M. D." ;
course of ditch thence, etc., etc.
I also claim 50 inches of the waters of said river, to
be conveyed by said ditch, with the exclusive right of way
for said ditch ; together with all and singular, the heredi-
taments and appurtenances thereunto belonging or in any
wise appertaining.
Witness my hand and seal this 17th day of January,
in the year nineteen hundred and three.
ALEXANDER G. COCHRAN. [SEAL.]
STATE OF COLORADO, County of Fremont: ss.
Before me, the subscriber, a Notary Public in and for
said County, personally appeared Alexander G. Cochran, to me
personally known to be the same person described in, and
who executed the within Declaration of Occupation and ac-
knowledged that he signed, sealed and published the same
as his free and voluntary act and deed for the uses and pur-
poses therein set forth.
Witness my hand and Notarial Seal, this nth day of
January, A. D. 1908. Geo. W. Clclland,
[SEAL.] Notary Public.
The abo\e is a form prescribed by statute in
Colorado (M. A. 8. § 3610), but would be valid any-
where as a location certificate of ditch rights unless
the local statute should prescribe something more
than the names, date, description and declaration of
intention which such form contains.
The ditch should be staked and work com-
menced and prosecuted with reasonable diligence.
If the notice and record be not followed up within
DITCHES AND WATER. 183
a reasonable time by actual work in carrying out
the intended appropriation, they amount to abso-
lutely nothing.
Unless required by district rule or statute the
existence of such record could not be insisted on as
a condition of title, where the ditch is actually con-
structed and continuously used. But such record is
customary, always advisable, and when made be-
comes the initial point in the chain of recorded title.
The staking of a ditch means merely the survey
and marking of its line preliminary to excavation.
The stakes are not a part of its location as they are
of a mining claim.
How Conveyed.
Right to water appropriated may be transferred
like other property. A ditch is real estate and is
conveyed by deed. — Smith v. O'Hara, 1 M. R. 671;
Bradley v. Harkness, 11 M. R. 389; Burnham v. Free-
man, 11 Colo. 601; Colorado Act, 1893, p. 298.
Appurtenance.
Whether a deed of lands conveys the ditches and
water rights depends upon the intent of the grantor,
and may be implied where the use is necessary to its
beneficial enjoyment.— Arne££ v. Linhart, 21 Colo.
188; Gelwicks v. Todd, 24 Colo. 494. The water right
goes with the sale of a mill site. — N. A. Co. v. Adams,
104 Fed. 404- The ditch was held no appurtenance
in Quirk v. Falk, 2 M. R. 19, and Ginocchio v. Amador
Co. 67 Cal. 493.
A patent does not divest ditch rights. — Dodge v.
Marden, 1 M. R. 63. The right granted under the
A. C. 1866 was not confined to ditches then in exist-
ence.— Jacob v. Lorenz, 33 Pac. 119.
Abandonment.
A ditch may be abandoned without necessarily
abandoning the water which it carried. — New Mercer
Co. v. Armstrong, 21 Colo. 357. Non-user of ditch
does not necessarily amount to abandonment. — Welch
v. Garrett, 51 Pac. 405.
184 DITCHES AND WATER.
Buyer Must Take Notice of.
A ditch is a physical and visible monument, and
doubtless the grantee of land crossed by a ditch buys
with presumptive notice of its existence. — Oregon
Go. v. Trullenger, 4 M. R. 247; Lampman v. Milks, 21
N. Y. 505.
Relation.
When a ditch is made for the appropriation of
water, the right relates back to the commencement
of the work on the ditch, if the same be completed
within a reasonable time. — Maeris v. Bicknell, 1 M. R.
601; Irwin v. Strait, 18 Nev. 436.
But if the ditch be not completed with due dili-
gence, the right only accrues from the time the water
is actually appropriated. — Ophir Go. v. Carpenter, 4
M. R. 640. Facts stated and held to amount to due
diligence. — Oviatt v. Big Four Go. 65 Pac. 811.
Surplus Water.
Ditch owner must return surplus. — Stanford v.
Felt, 71 Gal. 249. After user by placer miner it must
be let go to claims below. — Alder Gulch Go. v. Hayes,
9 Pao. 581. Waste water defined. — Byrne v. Grafts,
73 Gal. 641.
Water escaping from a tunnel is not the subject
of appropriation such as to impose any obligations
on the tunnel owner. — Gardelli v. GomstocTc Go. 66
Pac. 950, and the same as to water from the sluice of
a placer claim and tapped on the owner's ground by
his license. — Fatirplay Go. v. Weston, 67 Pac. 160.
Parol License to Construct.
Where a ditch is constructed on government land
or over the land of persons who give their consent, no
condemnation proceedings are necessary; the ditch
once constructed becomes a lawful easement; or the
consent may be treated as giving title by estoppel. —
Yunker v. Nichols, 8 M. R. 64.
Such was the decision made on general princi-
ples and upon conditions found equally everywhere
on the Pacific slope. We apprehend that it states
DITCHES AND WATER. 185
the true rule applying to this class of cases. It was
doubted in Stewart v. Stevens, 10 Colo. 44$, hut has
been repeatedly followed since. — Oppenlander v. L.
H. Co. 18 Colo. 142; Tynon v. Despain, 22 Colo. 240.
With or without the aid of this or like decisions it
remains clear that a ditch over the public land re-
quires the consent of no person, the federal consent
being given by law, that verbal consent is commonly
taken as sufficient over possessory claims and that
when by its construction it becomes a fixed ease-
ment, even the patented title recognizes the validity
of the title to such ditch. — Tynon v. Despain, 48
Pac. 1039.
Condemnation Where Necessary.
Where it is to be built across claims or other
lands whose owners refuse consent, condemnation
proceedings are necessary under the Eminent Do-
main Acts, notwithstanding the right of way granted
to ditches by the Act of 1866. (R. S. 2339.) A ditch,
when carried across mining claims already located,
must recognize their prior possessory rights and pay
damages as in other cases of condemnation. — Tit-
comb v. Kirk, 5 M. R. 10; Jennison v. Kirk, 4 M. R.
504; Noteware v. Sterns, Id. 650. It seems not neces-
sary that the 'ditch owners should incorporate to
condemn a right of way for ditches, though incor-
poration in such cases is usual and is always as-
sumed to be necessary in the absence of constitu-
tional provisions dispensing with it such as § 7, Art.
XVI, Colorado Constitution.
Irrigation Ditches are granted the same rights of
way and the same right to appropriate water as
ditches for mining purposes under § 2339 above
printed. Neither has any class priority over the
other. — Union Co. v. Dangberg, 81 Fed. 73. The
first in time is first in right. They may in gen-
eral be located and recorded in the same form as
a mining ditch, except when otherwise regulated by
statute.
186 . RIGHT OP WAY.
By M. A. S. § 2265, a map was required to be
filed with the County Recorder and the State Enj
gineer on which were to be endorsed certain details
of size of ditch, etc., but the section was declared
void for want of a proper title to the Act in Lamar
Co. v. Amity Co. 26( Colo. 370.
Under this state of the law we apprehend that
where the record of an irrigating ditch is required
it is sufficient under the form on page 182, changing
the word "mining" to "irrigating."
Contract to enlarge a ditch so that -it would be
filled from a certain river construed to mean to
make a ditch of a certain capacity and not a guar-
anty that the water would be there to fill it. — Flick
v. Hahn's Peak Co. 66 Pac. 453.
For form of incorporation of ditch company see
CORPORATIONS.
RIGHT OF WAY, ROADS, TRAILS AND OTHER
EASEMENTS.
State Power to Regulate Easements.
R. S. Sec. 2338. — As a condition of sale, in the ab-
sence of necessary legislation by Congress, the local legis-
lature of any State or Territory may provide rules for
working mines, involving easements, drainage, and other nec-
essary means to their complete development ; and those con-
ditions shall be fully expressed in the patent. — Sec. 5, A. C.
July 26, 1866.
Highways.
R. S. Sec. 2477. — The right of way for the construc-
tion of highways over public lands, not .reserved for public
uses, is hereby granted. — Sec. 8, A. C. July 26, 1866.
By ,the terms of the above section 2477, roads
and trails may be established without any license
or formality over the public domain. — Hobart v.
Ford, 15 M. R. 236.
By a very early statute in Colorado all claims
are made subject to the right of way for hauling
RIGHT OF WAY. 187
quartz (M. A. 8. § 3145), and by another section
(3158) parol license to build a road is valid without
deed. Where such statutes do not exist at the time
when a location is made the estate of the miner in
his claim is exclusive and a road cannot be laid
across it, without his acquiescence, except by con-
demnation under the Eminent Domain Acts, with
compensation in damages. — Titcomb v. Kirk, 5 M. R.
10.
Not Divested by Patent.
A mineral patent does not divest a valid high-
way already on the ground when patent was applied
for.
And when construed in connection with the Act
of Congress and the power of the State to regulate
easements it would seem that the patent would be
subject to any valid subsisting easement affecting
the ground prior to the application. Such an ease-
ment saves itself and needs not to be protected by
filing an adverse claim. — Rockwell v. Graham, 15
M. R. 299; Jacob v. Day, 44 Pac. 243.
Annual Labor.
The building of trails or roads for the benefit
of a claim counts as annual labor or towards mak-
ing up the $500 improvements required before pat-
enting. See page 93.
One Tenant in Common can not by his general
deed or license create an easement over the common
claim in favor of a stranger. — Pfeiffer v. University,
74 Gal. 156. Nor has the general manager of a mine,
power to grant an easement. — Butte Co. v. Montana
Co. 55 Pac. 112.
Tramways, Canals, Electric Power Lines.
By various Acts of Congress the right of way
through public lands is given to tramroads, canals,
ditches, reservoirs and lines for distribution of elec-
tric power. Reference to the several Acts and the
regulations of the Secretary of the Interior promul-
gated thereunder will be found in 31 L. D. 13 and
188 DUMP.
503, especially with regard to the permit required
where the line crosses a government reservation.
See also ^8 L. D. 168; 27 L. D. 495.
By A. C. May 21, 1896, 29 St. L. 127, oil pipe
lines in Colorado and Wyoming are given free right
of way over the public land.
It has been held that right of way for a tramway
over a located claim cannot be condemned. — Peo. v.
District Court, 11 Colo. U7.
Provision for condemnation by electric power
companies and by mines seeking to connect with
railroads is found in the Colorado- Acts of 1901,
pages 131 and 238.
Bight of Way to Tunnel.
See TUNNEL SITE.
DUMP.
The Right to Dump is but little if at all affected
by statutory regulations, and the right to
dump, as of necessity or by custom, across lower
claims, has never been brought under the ad-
judication of the Court of last resort in any
of the mining States, to the writer's knowledge; but
in the case of Equator Co. v. Marshall Co. U. 8. C. Ct.
Colorado, an action brought to restrain the dumping
across a claim lying below on the mountain slope,
it was Held, as of course, that it was no case for in-
junction, unless where work was being prevented,
shafts filled, life endangered or other gross and con-
tinuing injury, and the remedy, if any, was by action
at law for damages.
In a later suit in the same Court between the
same parties it was held that when continuous
dumping had been carried on by owners and lessees,
without proof or attempt at proof, as to the injury
done by each party, that only nominal damages
DUMP. 189
could be recovered against an owner, and that the
owners were not responsible for the injuries done
by their lessees; and there being no proof that the
defendant, one of the owners, had ever taken an
active part in the management of the mine, the jury
found for the defendant. — See also Little Schuylkill
Go. v. Richards, 10 M. R. 661.
In the case of continuous and indiscriminate
dumping over lower claims it may, if not in the
meanwhile regulated by statute, be finally recognized
as a controlling custom and so fixed as a permanent
easement on the lower claims.
In the case of careless or wanton injury to im-
provements the upper claim is, of course, liable; but
the right to dump over unimproved and valueless
surface ground is doubtless such an easement as may
be allowed by State Statute (R. S. § 2338) or proved
as a district custom.
A Dump Is Real Estate and passes to the grantee
without special mention. But a contract to sell the
ore found in it need not necessarily be by deed. —
Smart v. Jones, 15 Com. Bench, N. S. 717. Dump
deposited on the land of another and allowed to re-
main indefinitely becomes parcel of the land. — La-
custrine Co. v. Lake Guano Co. 82 N. Y. 476; Erwin's
App. 16 M. R. 91. A deposit of tailings becomes an
accretion to the land. — Rogers v. Cooney, 14 M. R.
85.
Under a mining lease in general terms the les-
see has the right to work over the dump, but the
wording of the lease may be such as to exclude
dumps by construction. — Boileau v. Heath, L. R.
(1898), 2 Ch. 301; Genett v. Delaware Co. 43 N. Y.
Sup. 589; 25 N. E. 922.
The right to dump may be lost by allowing ad-
verse possession of the ground for the statutory
period. — McLaughlin v. Del Re, 16 Pac. 881. Eject-
ment lies to recover ground used for tailings. —
Campbell v. Silver Bow Co. 49 Fed. 47.
190 PLACERS.
The lessee has no property in the dump after
his term has expired; nor, during term, to minerals
not contemplated in his lease. — Erwiris App. 16 M.
R. 91; Doster v. Friedensville Co. 21 Atl. 251.
Construction of contract to work dump. — Fos-
ter v. Lumbermen's Go. 36 N. W. 171.
Appurtenances.
It has been held that the grant of a tunnel
right carries with it as an appurtenance the right
to dump on the grantor's land at the mouth of the
tunnel.— Scheel v. Alhambra, Co. 79 Fed. 821.
PLACERS.
Open to Location and Patent.
R. S. Sec. 2329. — Claims usually called "placers," in-
cluding all forms of deposit, excepting veins of quartz, or
other rock in place, shall be subject to entry and patent,
under like circumstances and conditions, and upon similar
proceedings, as are provided for vein or lode claims ; but
where the lands have been previously surveyed by the United
States, the entry in its exterior limits shall conform to the
legal subdivisions of the public lands. — Sec. 12, A. C. July
9, 1870.
Size of Claim.
R. S. Sec. 2330. — Legal subdivisions of forty acres may
be subdivided into ten-acre tracts ; and two or more per-
sons, or associations of persons, having contiguous claims
of any size, although such claims may be less than ten acres
each, may make joint entry thereof ; but no location of a
placer-claim, made after the ninth day of July, eighteen
hundred and seventy, shall exceed one hundred and sixty
acres for any one person or association of persons, which
location shall conform to the United States surveys ; and
nothing in this section contained shall defeat or impair any
bona-fide pre-emption or homestead claim upon agricultural
lands, or authorize the sale of the improvements of any
bona-fide settler to any purchaser. — Id.
Twenty Acres to One Locator.
R. S. Sec. 2331. — Where placer-claims are upon sur-
veyed lands, and conform to legal subdivisions, no further
survey or plat shall be required, and all placer-mining
PLACERS. 191
claims located after the tenth day of May, eighteen hundred
and seventy-two shall conform as near as practicable with
the United States system of public-land surveys, and the
rectangular sub-divisions of such surveys, and no such loca-
tion shall include more than twenty acres for each indi-
vidual claimant ; but where placer-claims can not be con-
formed to legal subdivisions, survey and plat shall be made
as on unsurveyed lands ; and where by the segregation of
mineral land in any legal subdivision a quantity of agricul-
tural land less than forty acres remains, such fractional
portion of agricultural land may be entered by any party
qualified by law, for homestead or pre-emption purposes. —
Sec. 10, A. C. May 10, 1872.
Building Stone Act.
That any person authorized to enter lands under the
mining laws of the United States may enter lands that are
chiefly valuable for building stone under the provisions of
the law in relation to placer mineral claims : Provided,
That lands reserved for the benefit of the public schools or
donated to any State shall not be subject to entry under
this act. — A. C. Aug. k, 1892. — 27 8 tat. L. 8^8.
Location and Certificate — Notice and Stakes.
M. A. S. Sec. 3136. — The discoverer of a placer claim
shall, within thirty days from the date of discovery, record
his claim in the office of the recorder of the county in which
said claim is situated, by a location certificate, which shall
contain : First, the name of the claim, designating it as a
placer claim ; second, the name of the locator ; third, the
date of location ; fourth, the number of acres or feet claimed ;
and fifth, a description of the claim, by such reference to
natural objects or permanent monuments as shall identify
the claim.
Before filing such location certificate the discoverer
shall locate his claim : First, by posting upon such claim
a plain sign or notice, containing the name of the claim,
the name of the locator, the date of discovery, and the num-
ber of acres or feet claimed ; second, by marking the sur-
face boundaries with substantial posts, and sunk into the
ground, to-wit : one at each angle of the claim. — March 12,
1879.
Legislation Concerning Placers.
Placer claims were not covered by the original
Act of 1866.
The Act of 1870 brought them within Congres-
sional recognition and made them open to patent.
They have been at all times regulated as to size,
labor, mode of location, etc., by the district rules
to a much greater extent than lode claims.
192 PLACERS'.
Placer Defined.
As commonly and properly understood a placer
claim means a location in which gold is found loose
in sand or gravel and not in the vein or in place;
it includes gulch claims, old channels, cement and
drift diggings.
Mining Claims Divided Into Lodes and Placers.
But the U. S. Mining Acts make an arbitrary
division of all minerals into two classes, to wit:
lodes and placers. All deposits of metallic minerals
in place are called, when located, lode claims, and
all deposits of other minerals in place or not in
place, are placers. Arbitrary as this division is, it
is the only construction allowable to the statute,
was at once adopted by the Land Office and has been
followed by the Courts. — Gregory v. Pershbaker, 15
M. R. 602.
What Is Classed As Placers.
Deposits of alum, asphaltum, soda and sulphur
may be patented as placer ground. — Circular 1 L. D.
572, Rev. Ed. 561; also kaolin or fire clay, 1 L. D.
579 Rev. Ed. 565; 17 Id. 550; borax beds, 2 Id. 707;
auriferous cement, marble, mica and slate, 25 Id. 354;
gypsum, Id.; 29 Id. 181; iron, when in the form of
a deposit, 1 L. 0. 34; limestone, 17 L. D. 82; phos-
phate, 18 Id. 58; 26 Id. 600.
Oil Lands.
Ever since the passage of the placer mining
Act, lands valuable for deposits of petroleum were
considered as open to location and patent as placer
claims and as such, records were made followed by
entries and patents as a matter of ordinary course.
—4 L. D. 60; 284; 16 L. D. 117. And such action
of the Land Office was followed by the courts in
dealing with oil located or patented as placer ground
without question of its regularity. — Gird v. Califor-
nia Oil Co. 60 Fed. 532; Van Horn v. State. 40 Pac.
964.
PLACERS. 193
After this unbroken procedure of more than
twenty years, the Land Office in 1896 (Union Oil
Co. 23 L. D. 222) abruptly held that oil was not a
mineral and oil lands therefore not subject to entry.
This was immediately followed by an Act of Con-
gress making such lands in terms patentable as plac-
ers. The ruling itself which induced the confusion
was later reversed by the Secretary of the Interior.
— 25 L. D. 351. The judicial rulings that oil is a
mineral have been uniform. — Thompson v. Noble, 11
M. R. 137; Gill v. Weston, 110 Pa. St. 317 barring
the anomalous case of Dunham v. Kirkpatrick, 101
Pa. St. 36.
Salines were the subject of congressional legisla-
tion for many years prior to the Mining Acts of
1866-72. Under those Acts they were still, treated
as neither lode nor placer but open to entry under
special statutes until January 31, 1901, when they
were declared to be placer ground. — 31 St. L. 145.
Quarries — Building Stone.
It was held under the original Act of 1870 that
a quarry of building stone could be entered and pat-
ented as placer ground. — 3 L. D. 116. But the decis-
ion to such effect by the department was overruled in
Conlin v. Kelly, 12 L. D. 1; followed by the Delaney
case, 17 L. D. 120, excluding both building stone and
glass sand as non-mineral. Stone of special commer-
cial value however was treated as mineral and placer.
—15 L. D. 370; 16 Id. 508.
In 1892 was passed the Special Act above printed
stating in terms that "lands chiefly valuable for
building stone" are to be considered as placer claims.
—23 L. D. 329, 516. Even this act would not allow
the entry of mere rock land if it were not known to
have greater value for legitimate mining of any de-
scription.— 23 L. D. 353.
A ledge of limestone containfng no form of ore
cannot be located as either a lode or placer claim. —
Wheeler v. Smith, 32 Pac. 78Jh The location in this
case was prior to the passage of the Stone Act of
194 PLACERS.
1892. It has been since expressly ruled that it cannot
be patented as a lode claim. — 23 L. D. 353, 395; but
may be located as a placer claim. — 17 L. D. 82.
Lands valuable chiefly for stone may be sold on
the same terms as timber lands, that is 160 acre
tracts at $2.50 per acre. — Act of June 3, 1878, 1 Sup.
167, and August 4, 1892, 2 Sup. 65.
Location Without Specific Mineral Value.
Some of the decisions of the department aided
by the Act of 1892 allowing quarries to be entered
were sufficiently loose to allow a claim to be laid
upon any ground; for either what can be called
building stone, or a color of gold in the pan, can be
found practically anywhere — but the obviously
needed declaration was at length made that land
could not be taken up as placer ground on mere
wash or because a color could be panned, its real
value being on account of its proximity to lode claims.
It must contain mineral in paying quantities. —
Royal K. Placer, 13 L. D. 86. Nor where it had no
characteristic of any form of placer. — Searle Placer,
11 L. D. 441.
Discovery or Knowledge of Mineral Value.
Unless specifically required by State Statute or
District Rule no discovery shaft is required, but the
Act of Congress implies that mineral shall have been
found before the right to locate upon the same as a
placer claim accrues. — 13 L. D. 86.
A discovery of the mineral sought for upon
the claim is held to be essential to a valid placer lo-
cation of any kind. Indications or knowledge of its
existence upon adjoining lands is not enough. — Ne-
vada Oil Co. v. Miller, 97 Fed. 688; Nevada Co. v.
Home Co. 98 Fed. 673; Olive Co. v. Olmstead, 103
Fed. 568.
A discovery pit or shaft on a vein shows to the
eye a mineral formation specifically distinct from
the surrounding country. A pit or shaft on placer
gravel shows nothing of that sort. A pit or shaft
on any of the various minerals claimed as statutory
PLACERS'. 195
placers might or might not show such indication.
Such working is not essential to the disclosure of
mineral value on this class of claims. But it is
clear from the implied requirement of knowledge or
discovery of mineral character, that the ground
about to be located must have a special value as
either placer proper or for some special deposit
treated as placer ground under the statute, and that
merely surveying and recording vacant land as and
for placer ground without known value under either
class is a void proceeding when properly contested or
attacked.
A Separate Discovery on Each Twenty Acres
is not required where there has been a joint loca-
tion of 160 acres. — McDonald v. Montana Co. 35 Pa",.
668; Union Oil Co. 25 L. D. 351 overruling previous
Land Office holding to the contrary. — L. 0. Reg. 19.
Use of Names — Nominal Association.
It requires eight l)ona fide locators to lawfully
claim 160 acres. The names of nominal parties are
often used to locate placer ground, and such nominal
association is not questioned in land office proceed-
ings, but its validity may well be doubted when con-
tested in court. Such use of names with agreement
to reconvey without consideration, has been held void
as against public policy. — Mitchell v. Cline, 24 Pac.
164; Durant v. CorMn, 94 Fed. 382.
In Gird v. California Oil Co. 60 Fed. 532 the court
held to a very strict construction on this point, and
ruled that where three persons in the employ of a
corporation located sixty acres it was good only to
the extent of a single location of twenty acres.
The Excess over the acreage allowed to be located
may be taken up by a stranger. — Gohres v. Illinois
Co. 67 Pac. 666.
Size of Claim That May Be located.
The amount of ground which may be located is
limited to 20 acres to each individual or person; of
course a corporation is one person without reference
196 PLACERS.
to the number of its incorporators. An association
of persons may locate a claim in common not ex-
ceeding 20 acres to each individual in the association,
and not exceeding 160 acres to the entire associa-
tion.
Conformation to IT. S. Sectional Subdivisions.
The Act speaks of making survey for the placer
claim conform as near as possible with the rectangu-
lar subdivisions of the public lands, but under the
practice this provision has been almost wholly dis-
regarded, except on subdivided sections. — 2 L D. 764;
20 L. D. 485.
Procedure to Complete Location.
Presuming that free gold or some other valuable
deposit other than a lode in place, is known to exist
on the ground, the claimant, if he desires the benefit
of the 30 days allowed the discoverer, should place
a notice conspicuously as follows:
FORM OF PRELIMINARY NOTICE.
Gold Bug Placer Claim.
The undersigned claims 20 acres for placer mining
purposes with 30 days from date to complete location and
record. W. W. MCCONNELL.
January 9, 1903.
We do not consider that the above notice is es-
sential in all cases, but it is customary. If the
claimant was the actual first discoverer of the min-
eral it might not be required; but if the existence
of the gold or other deposit had been a matter of
common notoriety, we do not see why one person
more than another could claim the time allowed to a
discoverer without some such notice.
Proceeding to perfect the location the claimant
must post upon the claim the statutory notice (page
191) which may be in form as follows:
LOCATION NOTICE.
Nellie Moore Placer Claim.
The undersigned claims 20 acres for placer mining pur-
poses, as staked 'on this ground. Date of discovery, Jan-
uary 9, 1903. JOSIAH WINCHESTER.
PLACERS. 197
SECOND FORM.
Ballarat Placer Claim.
The undersigned claims 1320 feet in length along the
gulch by 660 feet in breadth, for placer mining purposes, as
staked on this ground. Discovered January 9, 1903.
JOHN A. WHITE.
Dates.
It will be noted that the notice on the stake in
Colorado, must contain the date of discovery while
the record must contain the date of location. The
date when the posting and staking are completed
would be such date of location.
Place of Posting.
Where not directed by statute .or district rule
such ^notice should be posted at the center point of
the claim; or at some point where the prospecting
pits show actual work. It should be conspicuous
and either close to the apparent discovery or at the
center as above suggested.
Stakes and Ties.
The locator then stakes his claim, placing a
"substantial post," "sunk into the ground" at each
angle of the claim. No center stakes are required.
Accuracy and strictness- in fixing and marking the
boundaries cannot be too severely urged. Of course
some of the angles must be tied to "natural objects"
or "permanent monuments" in order to make a
proper location certificate or record. We advise the
same as in case of lode claim. (See page 52.) A
failure to stake invalidates the claim. — Anthony v.
Jillson, 16 M. R. 26.
Location by Trespass.
The rule that a location cannot be initiated by
trespass upon a prior valid possession applied in
contest where both claims were placers. — Kirk v.
Meldrum, 65 Pac. 633.
Staking Government Subdivisions.
It has been decided that the Statute requiring
the boundaries to be marked is not complied with by
198 PLACERS.
calling for a government subdivision in the notice or
record; that the locator must stake out his claim
the same as if he were locating on a private survey.
—White v. Lee, 78 Gal. 593; 21 Pac. 363; Contra, 22
L. D. 409.
Record.
The notice being erected and the ground sur-
veyed and staked, the location is complete and ready
for record, the location certificate being in form as
follows :
FORM OF PLACER LOCATION CERTIFICATE.
KNOW ALL MEN BY THESE PRESENTS, That I, Joslah
Winchester, of the City and County of Denver, State of Colo-
rado, claim, by right of discovery and location, the Nellie
Moore placer claim, containing twenty acres (or 1320 feet in
length by 660 feet in width), situate in Cripple Creek Min-
ing District, County of Teller, State of Colorado, bounded and
described as follows, to wit : Beginning at stake at corner
No. 1 : (here insert description, giving a course to each line,
and tying one or more corners to a government corner, well
known natural object or permanent monument, etc.} Date
of discovery, Jan. 9, 1903. Date of location, Jan 15, 1903.
Date of Certificate, Jan. 16, 1903.
JOSIAH WINCHESTER.
Description by claiming so many feet along the
creek and so many feet on each side was sustained
in McKinley Co. v. Alaska Co. 183 U. S. 563.
An amended location certificate may be filed the
same as allowed for lode claims. — Kirk v. Meldrum,
&5 Pac. 634.
The Statutory Requirements of the other mining
States which provide for the manner of locating
placer claims, are as follows:
Arizona.
1. Post notice containing name of the claim,
name of locator, date of location and number of acres
claimed, with reference to natural object or perma-
nent monument.
2. Mark surface boundaries with post or monu-
ment of stones at each angle of claim; posts must
be 4 inches square by 4 ft. 6 inches in length, set
PLACERS'. 199
one foot in ground, surrounded by mound of stones
or earth 4 ft. in diameter by 3 ft. in height.
3. Within 60 days after date of location, record
with County Recorder a copy of the location notice.
Idaho.
1. Place post or monument, as required in loca-
tion of lode claims, at each corner, and place on one
of these a notice of location containing date of loca-
tion, name of locator, name and dimensions of claim,
the mining district (if any), and County; also the
distance from such post or monument to such natural
object or permanent monument, if any such there
be, as will fix and describe in the notice itself, the
location of the claim.
2. Within 15 days after making the location,
make an excavation on the claim, for the purpose
of prospecting the same, of not less than 100 cubic
feet.
3. Within 30 days after the location, record
with County Recorder or with Deputy Recorder of
mining district, a substantial copy of the location
notice, verified as in the case of lode claims (p. 62).
Montana.
1. Post notice at point of discovery, containing
name of the claim, name of locator, date of location
and number of acres or superficial feet claimed.
2. Within 60 days from date of posting, the
equivalent in work of a 10-foot shaft must be done
upon the claim.
3. Within 30 days from date of. posting, mark
boundaries in same manner as required in case of
lode claims (p. 63).
4. Within 60 days from date of posting, file
with Clerk of County a declaratory statement con-
taining same as notice posted, adding description
of claim with reference to natural object or perma-
nent monument, dimensions and location of work
done and the location and description of each cor-
ner, with the markings thereon. This statement
must be verified by one of the locators (p. 63).
200 PLACERS.
Nevada.
1. Post upon a tree, rock in place, stone, post
or monument, a notice of location containing the
name of the claim, name of locator, date of location,
and number of feet or acres claimed.
2. Mark surface boundaries and the location
point in the same manner and by same means re-
quired for lode claims; on surveyed land when
taken by legal subdivision, only the location point
need be marked (p. 63).
3. Within ninety days after posting perform not
less than $20 worth of labor for development, and
record with Mining District Recorder and County
Recorder, a certificate stating same as posted notice,
and adding description of claim with reference to
natural objects or permanent monuments and the
kind and amount of work done and the place where
done.
Washington.
1. Post in a conspicuous place at the point of
discovery ,a notice containing name of the claim,
name of the locator, date of discovery and posting of
notice, which is considered date of location, descrip-
tion by reference to legal subdivisions if on sur-
veyed lands, otherwise with reference to natural ob-
jects or permanent monuments.
2. Within 30 days from discovery distinctly
mark the location on the ground so that its boun-
daries may be readily traced; marking must be done
even if claim is located by legal subdivisions.
3. Within 30 days from discovery record in the
office of the Auditor of the County a certificate of
location containing the same as the posted notice.
4. Within 60 days from discovery perform labor
equivalent in the aggregate to at least $10 worth for
each 20 acres.
5. Upon performance of such labor file with the
County Auditor an affidavit showing the nature and
kind of work done.
PLACERS. 201
These statutory provisions do not apply to oil
placer locations. — Acts 1901.
Wyoming.
1. Securely fix upon the claim a plain notice
containing the name of the claim, name of the loca-
tors, date of discovery and number of feet or acres
claimed.
2. Mark the boundaries by substantial posts or
stone monuments at each corner of the claim.
3. Within 90 days from discovery record with
the County Clerk a location certificate containing
same as posted notice and adding date of location
and description by such designation of natural or
fixed objects as shall identify the claim beyond ques-
tion.
Alaska, California, New Mexico, North and South
Dakota, Oregon and Utah have no specific statu-
tory provisions for the manner of 'locating and re-
cording placer claims, and in those States such lo-
cations are governed by district rules, where such
rules exist, and by the terms of A. C. § 2324. See
p. 59.
A placer location made according to the forms
given for Colorado, would doubtless be sufficient in
any of the above named States where district rules
do not require more specific details.
No Reservation Against Patentee.
.When patented under a location of the ground
as a "placer mining or stone quarry claim" the pat-
entee owns all minerals found within its bounds ex-
cept known lodes. — Freezer v. Sweeney, 21 Pac. 20.
And doubtless he owns to the same extent under a
location before patent subject to the right to locate
lode discoveries over the same ground, and except
lodes apexing outside but dipping underneath.
Homestead.
Lands located and used as a placer and also used
as a residence by the owner, may be selected by him
as a homestead, under the State law of exemptions,
202 PLACER CONTAINING LODE.
the question of title in the United States being ex-
cluded.— Gaylord v. Place, 33 Pac. 484.
Area in Feet or Acres.
By the following table the number of feet nec-
essary to include any desired number of acres when
in the shape of a square or parallelogram may be
ascertained:
Claim 660 x 330 feet contains 5 acres.
500 x 500 " " 5.73 "
660 x 660 " " 10
1320 x 660 " " 20
800 x 1089 " " 20
933% x 933% " " 20
1320 x 1320 " 40
2640 x 2640 " 160
43560 square feet equal one acre. A square
208.71* feet in length and width makes one acre.
PLACER CONTAINING LODE.
Claim Intersected by Lode.
R. S. Sec. 2333. — Where the same person, association,
or corporation is in possession of a placer-claim, and also
a vein or lode included within the boundaries thereof, appli-
cation shall be made for a patent for the placer-claim, with
the statement that it includes such vein or lode, and in such
case a patent shall issue for the placer-claim, subject to the
provisions of this chapter, including such vein or lode,
upon the payment of five dollars per acre for such vein
or lode claim, and twenty-five feet of surface on each side
thereof. The remainder of the placer-claim, or any placer-
claim not embracing any vein or lode-claim, shall be paid
for at the rate of two dollars and fifty cents per acre,
together with all costs of proceedings ; and where a vein
or lode, such as is described in section twenty-three hun-
dred and twenty, is known to exist within the boundaries
of a placer-claim, an application for a patent for such
placer-claim which does not include an application for the
vein or lode claim shall be construed as a conclusive decla-
ration that the claimant of the placer-claim has no right
of possession of the vein or lode claim ; but where the ex-
PLACER CONTAINING LODE. 203
istence of a vein or lode in a placer-claim is not known,
a patent for the placer-claim shall convey all valuable
mineral and other deposits within the boundaries thereof. —
Sec. 11, May 10, 1872.
Known Lodes Excluded.
An application for patent to a placer claim is
not supposed to include any known lode running
through it, unless such lode is owned by the appli-
cant and especially designated in the application,
but it covers any after discovered lode. — O'Keefe v.
Cannon, 52 Fed. 898.
The placer patentee acquires no title to lodes
known to exist prior to and not included in his appli-
cation.— Clary v. Hazlitt, 67 Col. 286.
The exception of known lodes does not apply to
placer patents issued on entries prior to May 10, 1872.
— Cranes G. Co, v. Scherrer, 66 Pac. 487.
What Are Known Lodes.
Where a lode within the placer lines has been
discovered, located and recorded, and has kept up its
labor to the time of the placer application, it is clear
that such is a "known lode" beyond any possible
danger of construction.
But where lodes, though known, have not been
considered worth locating, or after location have been
abandoned, or where they have been known as a
matter of common knowledge to be within the lines,
as in the case of outcrops not considered worth work-
ing— these points admit of more or less controversy.
In the case of Reynolds v. The Iron Silver Co. 15
M. R. 591, the court ruled that the lode in or under-
lying the Wells & Moyer placer being shown to be
known to the applicants, could not be recovered by.
them in ejectment as against adjoining lode owners
who had worked beyond their side lines into the
deposit.
Known But Not of Known Value.
It has been with much reason held that a lode
or vein though known to exist but having no such
value as would justify its exploration or working, or
204 PLACER CONTAINING LODE.
by like expressions to the same effect — is not within
the exception of the patent. — O'Keefe v. Cannon, 52
Fed. 898; Brownfield v. Bier, 39 Pac. 461; Butte Co. v.
Sloan, 40 Pac- 217. It must be a lode of known prac-
tical value for working. — Montana Ry. v. Migeon, 68
Fed. 811; 77 Fed. 2J9; Casey v. Thieviege, 48 Pac.
394.
The allegation in an answer that there were no
known deposits of sufficient value to pay — is a proper
plea of no known lodes and does not state a conclu-
sion of law. — O'Keefe v. Cannon, 52 Fed. 898.
Known But Not Recorded.
It was held in Noyes v. Mantle, 15 M. R. 611, that
a located claim was a known lode. But in Iron Sil-
ver Co. v. Mike & Starr Co. 143 U. 8. 394, 17 M. R.
the Supreme Court go further and hold that it is
sufficient to exclude it that it be a lode known to
exist, and that where a lode has been notoriously cut
in a tunnel within the claim, it was such a disclosure
of the vein as to bind the patentee to a knowledge of
it. And while holding (p. 404) that not every out-
crop or crevice suggesting mineral would constitute
a known lode within the class to be excepted, yet
any vein disclosed and understood to be of value was
excluded, and whether a vein was known and was
of such a character as to be excluded, was a question
of fact for nisi prius decision by jury.
The mere fact that a lode record had been made
over the ground now claimed as placer does not
prove that there was a vein on which to record. — 23
L. D. 476; Butte Co. v. Sloan, 40 Pac. 217. And when
the fact of lode or no lode has been left on conflict-
ing evidence to the jury the court will not set their
finding aside. — Id.
To Whom Known.
In the Mike d Starr case it was held that it must
be known to the applicant or to the community in
general. If obvious to casual inspection, knowledge
was chargeable to the owner. But a lode discovered,
located and of record before the patent application,
PLACER CONTAINING LODE. 205
is a known lode whether or not the patentee had
knowledge of it. — Noyes v. Mantle, 15 M. R. 611.
Date of Discovery Material.
It had been held that the lode (to be an excepted
known lode) must be discovered before entry, but the
date of application is now the conceded date. — Dahl
v. Raunheim, 16 M. R. 214; Mike d Starr case, supra.
Of course, the application referred to is the ap-
plication upon which the patent ultimately issues
and the date of application is the date of filing the
paper "M" (post p. 396) in the course of proceedings
to obtain patent; but in Clipper Co. v. Eli Co. 68
Pac. 286, the opinion seems to treat an application
which had been dismissed by the Land Office as hav-
ing given a vested right to all lodes not known to
exist at date of such dismissed proceeding.
Necessity of Adverse or Protest.
If a known lode, whether held by strangers, or
not located at all, though known to exist, is under
the express terms of the statute as recognized by
many decisions excepted from the grant — it would
seem a necessary deduction that it need not file any
adverse claim to preserve its rights. But if it be
neglected either to procure an exclusion from the
placer survey or to adverse and the placer patent
issues, the Land Office will not as of course entertain
an application to patent the lode. Before the appli-
cation will be received it requires a hearing in the
local Land Office after notice to the placer patentee
as to whether in fact the lode was known to exist,
and unless upon such hearing the fact is affirma-
tively so found, it denies the application.— South
Star Lode, 20 D. D. 204; 27 Id. 676.
If the finding is that the lode was known, the
placer patentee is still at liberty to contest the lode
application by showing and securing a judicial de-
termination upon verdict that the lode was not
known to exist. — Alice M. Co. v. Street, U. S. Circuit
Court, Denver, unreported.
206 PLACER CONTAINING LODE.
The practice of the Land Office has not been uni-
form upon this point, and for some years prior to the
South Star case it had refused all applications to en-
ter lode claims over placers except by consent of the
placer patentee on the ground that the ex parte proof
of no known lodes originally made by the applicant
definitely established the non-existence of known
lodes. And yet, in instances a patent to both lode
and placer had been granted, as in Iron S. Co. v.
Campbell, 16 M. R. 218. In that case each party hav-
ing his proof of legal title in the shape of a paten-t,
the question of priority was held to be an extrinsic
fact to be found and settled by the jury under the
instructions of the court.
The patent is held conclusive evidence that the
land conveyed was placer ground! — Dahl v. Raun-
heim, 16 M. R. 214; Butte Co. v. Sloan, 40 Pac. 217.
There are expressions in both these opinions which,
taken by themselves, would read that the patent was
conclusive proof that no lode existed, but to so de-
cide on consideration of the whole case was evidently
not the intention of the court.
The practical conclusion from this vexed state of
the title, arising from the unwise reservation from
a government grant of a piece of land with no defined
bounds and even without acknowledged existence, is
that a lode within placer lines should assert itself by
adverse against the placer application at the out-
start, so as to avoid subsequent Departmental in-
quiry.—26 L. D. 573-, 27 Id. 676. And where the ap-
plication is by the lode claimant over a prior placer
patent, the safe course is for the placer to adverse if
the facts exist upon which to contest the title of the
lode claimant.
Proof of Known Lode by Contiguity.
Running a lode survey over placer lines raises
no inference that the vein enters within them. —
Raunheim v. Dahl, 9 Pac. 892; 132 U. S. 260; 26. L. D.
622. Nor is it sufficient that quite a number of
shafts sunk elsewhere in the district disclosed hori-
PLACER CONTAINING LODE! 207
zontal deposits which might be parts of a vein of
continuous extension through all that territory. —
Sullivan v. Iron Silver Co. 143 U. 8. 431. Nor does
the granting of a patent subsequent to the placer
patent over the placer ground raise any conclusive
presumption. The question in such case is then an
extrinsic issue dependent on proof. — Iron Silver Co.
v. Camp-bell, 16 M. R. 218; 25 L. D. 460.
Locating Lode Within Placer.
The placer owner, or a stranger with his. con-
sent, may locate a lode claim within the placer su-r-
vey.— McCarthy v. Speed, 77 N. W. 590. And doubt-
less the discoverers without such owner's consent
by peaceable entry may make such location. —
1 Lindley, § 413.
But in Colorado the sweeping decision, STEELE J.
dissenting has been made that the placer location
holds all lodes not known to exist at the time of the
location. That no prospector can enter to search
for them and that if he does so enter and discover
a lode he cannot locate it because his location was
initiated by trespass. — Clipper Co. v. Eli Co. 68 Pac.
286.
This practically gives all lodes to the placer
.owner and clearly defeats the intent of *the Act of
Congress. The question seems to us more analogous
to the case where one owns the surface and another
the minerals, in which instance it is universally
held that the surface may be entered upon and used
to the full extent necessary to find and win the
mineral values.
Width of Such Lode Claim.
Where the location of the lode is made within
the bounds of the placer location, and after the date
of the placer location, it has been held that the lode
claimant is restricted to fifty feet in width. — Mt.
Rosa Co. v. Palmer, 56 Pac. 176. But where the lode
was not only known to exist, but was a valid loca-
tion prior to a placer location, the lode is entitled
208 TAILINGS.
to its full width as staked, against the placer locator
or patentee. — Noyes v. Mantle, 15 M. R. 611. See 28
L. D. 41.
TAILINGS.
Each Claim Must Take Care of Its Own.
M. A. S. Sec. 3144. — In no case shall any person or
persons be allowed to flood the property of another person
with water, or wash down the tailings of his or their sluice
upon the claim or property of other persons, but it shall
be the duty of every miner to take care of his own tailings,
upon his own property, or become responsible for all dam-
ages that may arise therefrom. — Sec. 9, Nov. 1, 1861.
The Relation of One Claim to Another where
both are situate in the same gulch or on the
same waterflow was sought to be regulated by the
above section passed at an early date which fixed in
terms a matter of long continued dispute in Cali-
fornia. The tendency of the later decisions is to
the effect that the upper claim cannot justify cover-
ing up the lower claim on the plea of either custom,
priority or necessity. — Lincoln v. Roclgers, 14 M. R.
79; Fitzpatrick v. Montgomery, 50 Pac. 416.
Upper and Lower Claim in Same Gulch.
Notwithstanding the above Act or similar local
legislation elsewhere, the natural invitation of the
stream to utilize its current is a temptation too po-
tent to be resisted. No placer, barring exceptional
instances, can be conveniently worked without en-
croaching more or less upon the claims below. This
leads on the one side to trespass, on the other side
to concessions, and their relations thus become in-
volved with questions of license, contract and
estoppel.
The legal right of the claim to be exclusively
enjoyed by its own occupant is plain with or without
the aid of the Statute, subject to such considerations
as courts of equity will give to the hardship of deny-
TAILINGS. 209
ing the use of a natural outlet to a claim so situate to
its neighbors on the stream below that its use of
the stream is a physical necessity. The upper claim
is therefore not denied the right to rush its tailings
across the lower claim if they are not allowed to
lodge upon such claim. A claim staked and recorded
below for dumping purposes would also forestall the
location of the same ground for mining purposes,
except subject to the prior easement of the right to
deposit tailings.
Slight Injury to Lower Claims.
The owner is not liable for pollution of stream
incidental to placer mining, or to washing iron ore.
It is classed among non-actionable injuries. Nor
will such use of the stream be enjoined even if an
action lies, except in wilful or extreme cases. — Clif-
ton Co. v. Dye, 6 So. 192; Hill v. King, 4 M. R. 533;
Atchison v. Peterson, 1 M. R. 583.
But a, material injury will be prevented by writ
or compensated by damages. — Columbus Co. v.
Tucker, 26 N. E. 630; Tennessee Co. v. Hamilton, 14
So. 167; Drake v. Lady Ensley Co. Id. 749; Hindson
v. Markle, 33 Atl. 74.
A Boom Ditch was enjoined in Carson v. Hayes,
65 Pac. 814, and hydraulics in York v. Davidson, Id.
819.
Injunctive Relief Against Deposit of.
Where there is neither license nor the protection
of a prior location for tailing purposes and the
ground below has been taken up by other parties,
the statute is plain that the upper cannot lawfully
use the lower claim as a place of deposit. — Fuller v.
Sw>an River Co. 16 M. R. 252. To do so would be an
invasion of the legal rights of the lower claimant
for which he might recover damages, but it does
not follow that in every case the courts would inter-
fere to restrain the upper claimant by injunction.
And if the lower claims could be shown to have
been located or purchased for any purpose of annoy-
ance to the upper claims, the want of equity in such
210 TAILINGS.
case upon an application for injunction, would be
manifest. — Edwards v. Allouez Mining Co. 7 M. R.
577. Placer company enjoined at suit of water
works against fouling stream. — Travis Co.. v. Mills, 94
Fed. 909.
The incidental flow of mud and fine tailings not
sufficient to accumulate as deposit, but affecting only
the character of the water or causing but slight dam-
age, if an injury at all, is not such as to be inter-
fered with by injunction. — Atchison v. Peterson, 1
M. R. 583; U. S. v. N. Bloomfteld Co. 53 Fed. 631.
Property In.
Tailings are property of the miner who made
them, so long as retained on his own land or under
his control and not abandoned. — Jones v. Jackson, 14
M. R. 72. When allowed to flow upon the land of
another he becomes entitled to them. — Id. They
belong to the lessee for the time being — but not
after he has ceased acts of ownership. — Erwiris App.
16 M. R. 91.
Location of Dump Ground.
It has been held in Jones v. Jackson, 14 M. R. 72,
that a reasonable amount of ground below a mining
claim proper, may be located as a dump or place of
deposit for tailings. The same case holds that mere
posting of notice would not be sufficient to hold such
ground. We would advise as strict a location, in-
cluding staking, notice and record as should be made
in the case of the location of the mining or ditch
claim, to which such tailings claim may be appurte-
nant. In the nature of things the boundaries of such
a claim also would be strictly confined to the abso-
lute needs of the upper claim; nor do we consider
that such located easement would hold indefinitely
without user. It is a claim not so much of express
right as of necessity. The doctrine, however, that an
easement may be created on public land is distinctly
held in the above case, and in Lincoln v. Rodgers,
supra; O'Keiffe v. Cunningham, 9 M. R. 451. In Miser
v. O'Shea, 62 Pac. 1$1, such right is expressly denied.
TAILINGS. 211
Mill Tailings.
A mill owner, though the prior appropriator,
has no right to flow tailings into a stream when at
slight cost they could be so impounded as not to
materially foul the water. — Suffolk Go. v. San Miguel
Co. 48 Pac. 828. A mill will not be allowed to so pol-
lute the water as to render it unfit for use by prior
irrigation appropriators. — Montana Co. v. Gehring,
75 Fed. 385.
The rights and duties of two mills using the
same water, one above and one below, are fairly
stated in Otaheite Co. v. Dean, 102 Fed. 929.
Location "Upon Deposits of Tailings.
Vacant land upon which tailings have been de-
posited may be claimed and worked the same as land
containing natural deposits, and trespass maintained
by the claimant against a party carrying away such
tailings. — Rogers v. Cooney, 14 M. R. 85.
A party may take up a claim for mining pur-
poses which has been and still is used, as a place
of deposit for tailings by another — but in such case
his mining right would be subservient to the prior
right of deposit. — O'Keiffe v. Cunningham, 9 M. R.
451. On the other hand the right to dump may be
lost by allowing the mining claimant to hold exclu-
sive adverse possession. — McLaughlin v. Del Re, 16
Pac. 881.
The Debris Cases.
On the plea of interference with navigable wa-
ters the United States has, on the San Joaquin and
Sacramento Rivers, in California, prohibited all hy-
draulic mining, except under government license and
regulation. The Act of 1893 (27 St. L. 507) makes
such mining a misdemeanor unless carried on by
Federal supervision. This Act and the decisions un-
der it is the final outcome of what SAWYER J. can-
didly calls "a suit between the mining counties and
valley counties." — 18 Fed. 792. There are obvious
constitutional points arising out of such an act, but
212 MILL SITES.
it has been thus far sustained. — U. S. v. N. Bloom-
field Co. 81 Fed. 243; 88 Fed. 664.
A review of the progress of this struggle is
fairly given in the opinion of HAWLEY J. in the last
citation.
The passage of this act and the reference to the
opinion in 88 Federal Reporter, renders it unneces-
sary to further cite the numerous cases almost uni-
formly adverse to the miner, which led up to it.
Some of them were so harsh as to suggest that judi-
cial power had reached its limits. — 9th Ed. p. 182.
MILL SITES.
Extent — How Patented.
R. S. Sec. 2337. — Where non-mineral land not con-
tiguous to the vein or lode is used or occupied by the pro-
prietor of such vein or lode for mining or milling purposes,
such non-adjacent surface-ground may be embraced and in-
cluded in an application for a patent for such vein or lode,
and the same may be patented therewith, subject to the
same preliminary requirements as to survey and notice as
are applicable to veins or lodes ; but no location hereafter
made of such non-adjacent land shall exceed five acres, and
payment for the same must be made at the same rate as
fixed by this chapter for the superficies of the lode. The
owner of a quartz-mill or reduction-works, not owning a
mine in connection therewith, may also receive a patent
for his mill-site, as provided in this section. — Sec. 15> A. C.
May 10, 1872.
Location and Record.
Mill sites are located by posting notice and stak-
ing by a substantial post or stake at each angle,
which ordinary prudence would require to be in-
scribed with the name of the mill site and the num-
ber of the corner. There are no Congressional regu-
lations of the details of such location, but their
record should conform to the requirement applicable
to the record of all classes of claims, to wit, that
it contain a sufficient description by reference to
natural objects or permanent monuments; which
MILL SITES. 213
terms of the statute are no more than a statement of
what is required as a matter of course without such
statute. In other words, where any record whatso-
ever is essential to either original claim or convey-
ance, it must contain a description sufficient to iden-
tify the land intended to be described.
In Colorado the form in use is the statutory
wording prescribed for all cases of location of non-
mineral lands, M. A. 8. § 3610.
Post location notice at some conspicuous point
on the claim, in substance as follows:
LOCATION NOTICE.
I claim the Corinne mill site (600 feet northeast by WO
feet southwest) as staked on this ground. Date of location
Jan. 2, 1903. THOMAS W. FITCH, JR.
And make record in the proper county of the
LOCATION CERTIFICATE OF MILL SITE.
TO ALL WHOM THESE PRESENTS MAY CONCERN I Know
ye that I, Thomas W. Fitch, Jr., of Pittsburgh, County of
Allegheny, Commonwealth of Pennsylvania, do hereby de-
clare and publish as a legal notice to all the world that I
have a valid right to the occupation, possession and enjoy-
ment of all and singular that tract or parcel of land, not
exceeding five acres, situate, lying and being in Pioneer
Mining District, in the County of Dolores, in the State of
Colorado, bounded and described as follows, to wit: The
Corinne mill site, beginning at corner No. 1, from which, etc.
(description continued) to the place of beginning.
Together with all and singular the hereditaments and
appurtenances thereunto belonging or in anywise appertain-
ing.
Witness my hand and seal this 27th day of January,
in the year of our Lord one thousand nine hundred and three.
THOMAS W. FITCH, JR. [SEAL.]
For form of acknowledgment see page 182.
A %name is not essential to a mill site, but it is
convenient and preferable to style it by a name.
Location and record should be accompanied or
followed by substantial occupancy or valid improve-
ments. The digging of a ditch is not the location of
a mill site. "Land is appropriated by one character
214 MILL SITES.
of acts, water by another." — RoMnson v. Imperial
Co. 10 M. R. 377.
By the IT. S. Law They Are Limited to Five Acres,
but by the district regulations were sometimes re-
stricted to much less extent.
A square location 466.69x466.69 feet contains five
acres.
They Cannot Lawfully Be Located on Mineral
land.— 8 L. ~D. 195; 13 Id. 175. And if so located may
be contested by proceedings in the Land Office.
—5 L. 0. 51.
And a mill site adjoining the end line of a lode
claim being presumed to contain the extension of
the vein, will be considered as mineral land, and its
entry as a mill site will not be allowed; if a mill
site abut against a side line, the same presumption
does not exist, and its entry may be permitted. — 7
L. 0. Jt.
But the presumption that land on which a lode
claim end line abuts, is necessarily mineral, may
be rebutted by proof.— 7 L. 0. 179.
A mill site taken upon land supposed to be non-
mineral at the time will hold against a lode loca-
tion made later. And the finding of ore not of mer-
chantable value does not make the ground mineral
land.— Cleary v. SJciffich, 65 Pac. 59.
In Hartman v. Smith, 14 Pac. 648, it was held
that a mill site was a mining claim and as such ex-
cluded from a town site patent. In Cleary v. Skiffich,
28 Colo. 367, the Court says "A mill site is a mining
location." In the latter case the expression is a mere
introductory clause. But to chance the exclusion
from a town site patent of a mill site claim on the
forced or technical meaning of one word, would be
to assume grave risk. Bona fide prior location for
ranch purposes will defeat a mill site. — Hamburg Co.
v. Stephenson, 17 Nev. 450.
Two Classes of Mill Sites.
The latter clause of § 2337 supra, provides for
patenting of land actually occupied by a mill, but
MILL SITES. 215
the former and more important portion of the sec-
tion provides a means of procuring surface area to
cover such ground as may be used in any manner
incidental to the mine.
First Class — Mill Site With Lode.
Congress allows to each lode claimant the priv-
ilege of taking up five acres of ground, upon the
theory that such additional surface is, or may be,
needed either incidentally for the operation of the
mine (storage room, boarding houses, miners' cab-
ins, ore houses, etc.) or indirectly by a mill, patio,
arastra, or other works for treating ore. In fact,
any largely operated mine does require some such
space if not more. The land so needed is strictly
within the intent of the law; and though no mill
may be erected or contemplated, such area of surface
is styled a mill site.
The land taken under this clause must be:
1. Non-mineral.
2. Non-contiguous to the lode.
3. Used or occupied by the owner for mining or
milling purposes. — 13 L. D. 175.
1. Non-Mineral.
The test on this point, following analogous rul-
ings between agricultural and mining claims, would
be: has the land greater value for its mineral, or for
surface use in connection with the mine? — 13 L. D.
86; 517.
The form of proof of such non-mineral character
is by the affidavits of disinterested witnesses.
2. Non-Contiguous.
The object of this requirement is to prevent the ~
taking of an increased area of mining claim under
the pretext of mill site uses.
3. What Is Sufficient Use.
"The building on the land of a. pumping plant to
carry water to the mine is a sufficient mining use.—
11 L. D. 338. Or storing water on the same for the
mine. — 13 Id. 175. Use for storing ores or for tail-
216 MILL, SITES.
ings, shops or houses for workmen. — 5 Id. 192. Or
for houses for workmen on the mill. — 14 Id. 173.
The use of a cabin on the land for storing tools
was held sufficient in Hartman v. Smith, 14 Pac. 648.
This case practically decides that the ordinary use
of a prospector's cabin, wherever it may be located,
if not on ground contiguous to the lode, is enough
to justify the claiming of the site of the same as a
mill site. Cited and followed in Valcalda v. Silver
Peak Mines, 86 Fed. 90.
Insufficient Use.
The mill site section cannot be availed of to pat-
ent water rights proper— £ L. D. 106; 9 Id. 201; 12
Id. 624.
Or for the benefit of a third party. — 11 Id. 561.
The benefit must be to the particular lode in ques-
tion.—^ Id. 196.
A lode owner has no right to attach to his pat-
ent application, at the request of a third party, an
independent piece of ground as a mill site. — Ham-
burg Co. v. Stephenson, 30 Pac. 1088.
Land for its timber cannot be located as a mill
site, though the timber be used and needed at the
mine. — 7 L. D. 557. But this ruling is strained, as
timber has always been considered as a mining neces-
sity, and the taking of it for such purpose clearly
puts the land to a mining use. — Tartar v. Spring
Creek Co. 14 M. R. 371; Id. 388, note 9.
Second Class — Mill or Reduction Works.
Under this class, where the application is for
the mill site alone, there must be a mill or reduc-
tion works — incidental uses are not sufficient. That
the site contains a dam, penstock and pipe for driv-
ing works at neighboring mines will not answer. —
9 L. D. 460; 29 Id. 143. And patent will not issue to
give additional ground to a mill site already pat-
ented.— 12 Id. 75. Nor on two adjoining mill sites
with improvements on the line between them. — 14 Id.
11. It will not be allowed on the strength of carry-
ing water to a smelter on other ground. — 5 Id. 190.
MILL SITES. 217
Separate Application for Mill Site.
It has been ruled that where a lode has gone to
patent the owner may afterwards by separate appli-
cation obtain a patent on a mill site used in connec-
tion with the lode, and that such application need
not show an actual mill on the ground. Such mill
site is allowed to go to patent on the theory that
every lode is entitled to a mill site, and it is a matter
of indifference to the department whether the owner
applies for the patent on lode and mill site together
or separately.— 22 L. D. 496; L. 0. Reg. 62.
The $500 Improvements on the Lode are sufficient
to enter both lode and mill site, if the mill site is
used or occupied by the applicant for mining or mill-
ing purposes. — 8 L. D. 195.
Proof of Improvements.
The early practice of the Land Office was to pat-
ent a mill site when applied for in connection with
a lode, without proof of either use or improvements.
This practice was taken advantage of to patent build-
ing lots, and all sorts of claims as mill sites, but
the department now requires proof not only that it
is non-mineral land, but that it is used for milling
purposes or in connection with the mine — instances
of such use being above given.
This proof of the use of the site in connection
with the mine is by affidavit of the applicant and of
two disinterested witnesses. Intention to use is not
sufficient.— !Jt L. D. 544.
Adverse and Protest.
When a mill site application conflicts with a
prior claim of another to the ground for like pur-
poses it may be adversed; or it may adverse or be
adversed by a lode or placer. — 1 L. D. 566; Rev. Ed.
555. Where in conflict with a mineral claim it may
be defeated by a protest and proof of being located
on mineral land. — 4 L. 0. 3; 5 Id. 51. But see 0
Id. 11.
218 SEVERANCE.
SEVERANCE.
Separation of Surface and Mineral Estate.
The ownership of the minerals may be vested in
one, while the ownership of the surface is in an-
other. This severance is often created by deed, in
which case it amounts practically to a partition on a.
horizontal plane, the two estates being entirely sepa-
rated, except that from the nature of the case, the
surface owner can usually claim the right of support,
while the mine owner can claim such incidental use
of the surface as is necessary to enable him to win
the minerals. — Caldwell v. Fulton, 3 M. R. 238; Homer
v. Watson, 14 M. R. 1; Marvin v. Brewster Go. 18
M. R. 40.
When minerals are so severed they form a sepa-
rate part of the freehold and the estate is not a mere
easement. — Bonson v. Jones, 56 N. W. 515; Thompson
v. Mattern, 9 Atl. 70; Plummer v. Hillside Co. 104 Fed.
208. The right of entry on surface cannot be en-
larged so as to allow the erection of coke ovens — and
its use for powder house, blacksmith shop and supply
stores depends upon the circumstances of the case as
found by the jury. — Williams v. Gibson, 16 M. R. 243.
The mine owner may erect hoisting plant. — Warden
v. Watson, 5 8. W. 605.
If the surface owner take the minerals he is a
trespasser. — Ashman v. Wigton, 12 Atl. 74.
Where there has been a severance of the surface
from the minerals there is no privity between the
estates. — Hutchinson v. Kline, 49 Atl. 312; and their
owners are not tenants in common. — Virginia Co. v.
Kelly, 24 8. E. 1021.
Mining Under Surface Improvements.
By statute in Colorado (M. A. S. § 3139; 3159)
the mine owner is bound to secure the owner of the
SEVERANCE. 219
surface improvements if he attempt to mine under
any such improvements. Such statutes are no great
departure from the common law which compels each
estate to be enjoyed with proper regard to the rights
of the sub-owner or superficial owner as the case
may be, and would enjoin mining under valuable
improvements if irreparable injury were threatened
by such mining.
A miner has no right to work within the enclos-
ure surrounding a dwelling house, corral or other im-
provements of another. — Burdge v. Underwood, 4
M. R. 518.
Instances of Severance.
The surface and the subjacent strata are rarely
owned by separate parties on the western slope except
where placer gold or lodes have been discovered in
towns before entry under the Town Site Acts; or in
instances where conflicting claims have been com-
promised by deed, one party taking the surface and
improvements, the other the veins underneath.
But the subject is important in the Western
States chiefly with reference to the question of
whether claims located on government land and
claims patented by the government take both surface
and minerals in all cases, or whether in any case
there is an actual or implied severance of the min-
erals from the* surface, either from the nature of the
claim or from the language of patents confirming the
claim.
Patented Claims Generally.
As to patented claims it has been the policy of
the government to grant the entire estate, and retain
no interest with the patentee. It has been so held in
the case of a Mexican grant confirmed by patent, al-
though under the original grant the claimant had
received no title to the mines of gold and silver from
the Mexican government. It was considered that the
confirmatory patent of the United States conveyed
the soil, and everything under the soil, and that if
the government had intended to reserve the royal
220 SEVERANCE.
metals, as the Mexican Republic had done, it should
have been so expressly stated in the patent. — Moore v.
Smaw, 12 M. R. 418.
Patented Lode Claims.
In patents to lode claims both surface and min-
erals are conveyed in terms.
Patented Placers.
As to placer claim patents, they convey not only
the placer deposits and the surface, but also all veins
except those known to exist when the application for
patent was filed, which are especially excepted.
Patented Mill Sites.
As to mill site patents it is required that such
claims be located on non-mineral land.
But aside from the clause referring to the rights
of the proprietors of lodes dipping underneath, which
is common to all classes of patents, they seem to be a
general grant of the land which they enclose, which
grant would cover all lodes and mineral rights.
A valid lode claim overlying the ground could
have protected its rights by an adverse; and not only
do the general rules of construction favor the propo-
sition that a mill site patent conveys all lodes and
deposits found within its lines, but the government
having undertaken to decide the mineral or non-
mineral character of the ground before the patent
issues and thereupon to issue an absolute grant, such
grant carries both the soil and what is under the soil.
Or if the grant is not considered absolute, owing to
the reservation of lodes which penetrate the lines of
the mill site on the strike, which has been sometimes
inserted, such reservation is one forced into the paper
without legal authority, and is therefore void. — See
Davis v. Weibbold, 139 U. S..507; Gale v. Best, 78
Gal. 235.
Patented Agricultural Claims.
As to patented agricultural claims obtained in
good faith, not at the time of entry known to be min-
eral land, minerals afterwards discovered certainly
SEVERANCE. 221
belong to the patentee; but where land has been en-
tered as agricultural upon which mineral locations
existed, in defiance of the rights of mineral claimants,
such patents could be set aside as against the mineral
claimants, and it was Jield in the case of Gold Hill Co.
v. Ish, 11 M. R. 635, that such a patent was absolutely
void as to the land covered by the mining claim.
A patent, however, howsoever procured, usually
operates to pass title, and in such case the holder
should be declared a trustee for the use of the owner
of the mine. See page 135. Salmon v. Symonds, 30
Cal. 302.
The mineral value of the land, to defeat an agri-
cultural entry, must be substantial. Abandoned
works are not enough. — U. 8. v. Blackburn, 48
Pac. 904.
Discovery of coal after entry will not defeat the
issue of his patent to a homestead claimant. — 21 L. D.
92; Colo. Co. v. U. 8. 123 U. 8. 308.
Lodes Dipping Under Patents.
It may as well be observed under this head that
all patents, agricultural as well as mineral, are sup-
posed to contain a reservation of the right of lodes
apexing outside their bounds, to dip underneath their
lines. See page 164.
School Lands.
Section 16 of each township, if non-mineral,
since the organization of the Federal Government,
and in later years, Section 36, and in some States ad-
ditional sections, have been reserved from sale and
granted to the respective States upon their admis-
sion, such sections in the Territories being held by
the government by an implied trust to that
effect— 8 L. D. 495. The words of grant to the
several States are not uniform but in general the
title passes upon approval of the survey. — 7 L. D.
459; 9 Id. 408; Cooper v. Roberts, 18 How.* 113.
In the meantime before State admission and un-
til survey they are open to discovery of mineral and
222 SEVERANCE.
location of mineral claims upon them the same as
upon the rest of the public domain.
When the mineral character of such reserved
sections was known before survey the title to no
part of the same passes to the State, and claims may
be located upon them. — 5 L. 0. 178; Heydenfeldt v.
Daney Go. 13 M. R. 204; Ivanhoe Co. v. Keystone Go.
13 M. R. 214.
But where their mineral character has been dis-
covered since they were surveyed, such subsequent
discovery of mineral will not divest the title which
has already passed.— 7 L. D. 459; 9 Id. 408. And the
States have control of their sale and disposal. Be-
fore admission as a State, a Territory has not such
control.—// L. D. 390.
By Act of Congress approved April 2, 1884 (Sup.
p. 424}, Colorado is reimbursed for school sections
lost to the state by reason of their mineral charac-
ter, and similar Acts apply to other States. Loca-
tions may be made on indemnity sections until ap-
proval.—27 L. I). 411; 29 L. D. 181.
Where lands are mineral at date of the reserva-
tion they do not pass to the State upon the subsequent
abandonment of the mines. — Hermocilla v. Hu'b'bell,
26 Pac. 611.
The determination of non-mineral character by
the Land Office is not subject to collateral attack. —
Saunders v. La Purisima Go. 51 Pac. 656.
In Nevada the State Lands are by statute open
to prospectors and the State Patent does not pass
mines claimed under the Act. — Stanley v. Mineral
Union, 63 Pac. 59.
Patented Town Sites.
In this case there is an express severance of
the minerals. The holder of the lot takes no title
to any located claims. The lot is subject to entry
to get the mines of gold or silver which it may con-
tain.—R. S. § 2386, 2392.
These sections are supplemented, if not supplied
by an Act approved March 3, 1891, as follows;
SEVERANCE. 223
Reservation of Mineral Eights From Town Sites.
Sec. 16. — That town-site, entries may be made by
incorporated towns and cities on the mineral lands of the
United States, but no title shall be acquired by such towns
or cities to any vein of gold, silver, cinnabar, copper, or
lead, or to any valid mining claim or possession held under
existing law.
When mineral veins are possessed within the limits of
an incorporated town or city, and such possession is recog-
nized by local authority or by the laws of the United
States, .the title to town lots shall be subject to such recog-
nized possession and the necessary use thereof and when
entry has been made or patent issued for such town sites
to such incorporated town or city, the possessor of such
mineral vein may enter and receive patent for such mineral
vein, and the surface ground appertaining thereto :
Provided, That no entry shall be made by such mineral
vein claimant for surface ground where the owner or occu-
pier of the surface ground shall have had possession of the
same before the inception of the title of the mineral-vein
applicant. — Sup. p. 9^5.
The town patent, where valid mining locations
have been made on such discoveries, does not grant
the minerals. — Moyle v. Bullene, 44 Pac. 69; 26 L. D.
144; ^9 L. D. 89; nor where the land was known to
be mineral at time of entry.— 29 L. D. 426; 31 Id. 88.
Under the terms of the second paragraph of the
present Act it seems clear that lode or placer pat-
ents can issue for such claims within the town lim-
its.— 25 L. D. 518. If the mine was located after the
occupation of the surface by the lot owner, but be-
fore the entry of the town site for patent, the mines
and surface are then separate estates, each to be
enjoyed under the various applications of the maxim:
sic utere tuo ut alienum non laedas. — Smoke House
Lode Case, 12 Pac. 858; King v. Thomas, Id. 865; Def-
feback v. Hawke, 115 U. 8. 392.
Under the various reservations in favor of mines
out of town site patents, under the Acts in force
before 1891, it has been decided that discovery of
mineral after the patent issues is of no avail. — Tomb-
stone T. 8. Cases, 15 Pac. 26; Lamed v. Jenkins, US
Fed. 634. That a location not valid on account of in-
definite description is not excluded. — Blackmore v.
Reilly, 11 Pac. 72. Nor a location without a discov-
224 SEVERANCE.
ery. — Regan v. Whittaker, 85 N. W. 863. That only
the lode, and not its surface, is excepted, at least
under patents prior to 1872. — Dower v. Richards, 73
Cal. 477. That the mine must have been a known,
valuable and subsisting claim. — Smith v. Hill, 26 Pac.
644; Davis v. Weibbold, 139 U. 8. 507. In the last
case it was also held that a reservation in a mining
patent in favor of a lot claimant was a nullity be-
cause unauthorized. A lode once profitably worked
and then abandoned is not excepted, though after
the town site patent issues the lode is found to be
still valuable. — Dower v. Richards, 151 U. 8. 658.
The rights of the mine owner against the lot
owner may be lost by laches. The Probate Judge's
deed covering the mining ground is not void, but
only voidable. — Horsky v. Moran, 53 Pac. 1064-
Doubtful Policy of General Reservations.
Out of these attempted reservations of known
lodes, mines, or minerals, by general terms under
the Acts providing for the patenting of different
classes of land, only trouble, uncertainty and litiga-
tion ensue; the holdings, therefore, are usually
strictly against them. And yet the fault is with the
government attempting to protect such rights by
sweeping clauses instead of allowing them to ad-
verse or to come in as co-applicants — the mines be-
come abandoned and the lot owner claims the whole
estate, or they become of sudden value, tempting the
miner to assert more than his rights. The same ob-
servations apply with greater force to the reserva-
tion of known lodes out of placers. The result in
either case is that the surface is disposed of, while
the legal title to the minerals remains in the United
States. The present practice is to allow an overlap-
ping patent to the mineral claimant under certain
conditions.— 25 L. D. 518; 29 Id. 89; 426. Before the
decision in the South Star case, cited p. 205, the de-
partment had required the surface patent to be set
aside before they would take action. — Pike's Peak
Lode, 10 L. D. 200; Protector Lode, 12 L. D. 662.
TUNNEL SITES. 225
Unpatented Claims.
A lode claim covers the entire surface as well
as the veins within it. Before the passage of the
Mining Acts, it had been held (Brown v. 49 Go. 9
M. R. 600) that a lode location also included float
gold below its apex, which had evidently come from
that particular vein. It is evident, from the Con-
gressional grant of the surface without excepting
any form of deposit, that a lode location made in
good faith upon an ore-producing vein, without the
aid of any such decision, would include placer de-
posits within its lines both above and below the
vein.
But an unpatented placer claim covers no lodes,
and a lode claim may be located across it. An un-
patented mill site, town site or ranch claim, does
not include either veins or deposits of gold or sil-
ver. If the holder of such claim discover mineral
upon it he should stake and record the same, as a
mining claim, and he has the same right as a stran-
ger so to do, if he be the first to disclose such min-
eral value. — McCarthy v. Speed, 77 N. W. 590.
Where land has been returned as agricultural
the discovery and formal location of a lode or placer
deposit over the same, shifts the presumption to
one in favor of the mineral claimant. — 21 L. D. 502.
TUNNEL SITES.
Line of Tunnel— Neglect to Work for Six Months.
R. S. Sec. 2323. — Where a tunnel is run for the devel-
opment of a vein or lode, or for the discovery of mines,
the owners of such tunnel shall have the right of possession
of all veins or lodes within three thousand feet from the
face of such tunnel on the line thereof, not previously
known to exist, discovered in such tunnel, to the same ex-
tent as if discovered from the surface ; and locations on the
line of such tunnel of veins or lodes not appearing on the
surface, made by other parties after the commencement of
the tunnel, and while the same is being prosecuted with
8
226 TUNNEL SITES.
reasonable diligence, shall be invalid ; but failure to pros-
ecute the work on the tunnel for six months shall be con-
sidered as an abandonment of the right to all undiscovered
veins on the line of such tunnel. — Sec. ^ A. C. May 10, 1872.
Record.
M. A. S. Sec. 3140. — If any person or persons shall
locate a tunnel claim for the purpose of discovery, he shall
record the same, specifying the place of commencement and
termination thereof, with the names of the parties inter-
ested therein. — Nov. 7, 1861.
Line of Tunnel.
Immediately upon the passage of the mining
Act of 1872, containing the tunnel section above
printed, controversy arose as to what was meant by
the words "the line thereof."
The Land Office shortly published their con-
struction that it meant "the width thereof and no
more." This construction was adopted in the case
of Corning Tunnel Co. v. Pell, 14 M. R. 612. This
became the generally received interpretation of the
act until the case of Enterprise Co. v. Rico Aspen Co.
66 Fed. 200, affirmed by the National Supreme Court
in 1897, 167 U. S. 108\ followed by the case of Camp-
bell v. Ellet, 167 U. S. 116, affirming 18 Colo. 511.
The court holds that a tunnel duly located and
its work diligently prosecuted holds the right to all
lodes not previously known to exist, on either side
of the bore. That is to say, when a lode is reached
the tunnel may elect to take 1,500 feet in one direc-
tion or 1,500 feet on the other side or may divide
the length, so much on either side. That all loca-
tions on lodes not previously known, made within
such area are voidable at the election of the owner
of the tunnel.
Location and Record of Tunnel Site.
The following form has been drawn in attempted
compliance with the Act of Congress, the Land Of-
fice regulations and the construction given to the
act by the Rico-Aspen case.
It purports to claim its entire frontage of 3,000
feet as its line of tunnel, and if the Rico-Aspen case
TUNNEL, SITES. 227
stands in its entirety, the claimant is in position to
assert his full rights under such form. But the Rico-
Aspen case in principle cannot be reconciled with the
Erhardt-Boaro case, 15 M. R. 472. There the pros-
pector by his notice had an inchoate right to his lode
just discovered; such notice not specifying the ex-
tent of his claim, he was limited in his right of selec-
tion to 750 feet on each side of his point of discovery.
This discord as to the two classes of claims still
existing, we advise that it is safer fpr the tunnel
claimant to elect at the outstart to take 750 feet on
each side, or some other definite number of feet on
each side, of the bore of his proposed tunnel.
LOCATION CERTIFICATE OF TUNNEL.
TO ALL WHOM THESE PRESENTS MAY CONCERN : KnOW
ye, that I, W. E. Renshaw, a citizen of the United States, of
Idaho Springs, County of Clear Creek, State of Colorado,
do hereby declare and publish as a legal notice to all the
world that I have a valid right to the occupancy, possession
and enjoyment of THE •HALL TUN.NEL AND TUNNEL SITE, lo-
cated January 22nd, A. D. 1903, for the discovery of mines
and the development of lodes, and situate in Griffith Mining-
District, Clear Creek County, State of Colorado, described
as follows, to wit :
Mouth of tunnel situate on north slope of Leavenworth
mountain; from the mouth of the tunnel, culvert under the
middle track of the Georgetown, Breckenridge & Leadville
Railroad bears N. 17° SS' W. 32 feet; corner No. 6 survey lot
No. 4614-B. Lion mill site bears N. 73° Jf5' W. 100.7 feet;
Woodchuck rock bears N. 50° 45' E.; Sherman mountain bears
N. 72° 55' W.
Size of tunnel 8 feet wide by 7 feet high in the clear.
Course of tunnel from its mouth S. 17° 38' E. 3,000 feet
to the south end. of said tunnel, at which point is set a
substantial stake, being the end stake, and between tunnel
mouth and end stake the center line of the tunnel is marked
at 500 feet, 1,200 feet, 1,900 feet and 2,528 feet from the mouth
by marked stakes or blazed and marked trees. From the
end stake Republican mountain bears N. £0° W.; Saxon
mountain bears N. 39° 40' E.; a stump 9 inches in diameter
marked "B. T. & H. T." bears S. 86° 15' W. 18.% feet; a tree
5 inches in diameter marked "H. T. & B. T." bears N. 43° W.
2 feet; from said end stake, set a stake N. 72° 22' E. 1,500
feet; from said end stake set a stake S. 72° 22' W. 1,500 feet;
from mouth of tunnel set a stake N. 72° 22' E. 1,500 feet;
from mouth of tunnel set a stake S. 72° 22' W. 1,500 feet;
228 TUNNEL SITES.
which last four mentioned stakes are at the exterior cor-
ners of the claim of said tunnel site.
And I claim for line of tunnel 1,500 feet on each side
of the center of the bore or course of the tunnel, and the
right to all lodes which may be discovered in the due pros-
ecution of said tunnel within 1,500 feet on either side of the
center of said line.*
Together with all and singular the hereditaments and
appurtenances thereunto belonging or in anywise appertain-
ing, and all rights granted to the locator as tunnel rights
under the terms of section 2323 of the Revised Statutes of
the United States.
Witness my hand and seal this 22nd day of January,
A. D. 1903.
W. E. RENSHAW. [SEAL]
STATE OF COLORADO, City and County of Denver: ss.
Before me, the subscriber, a notary public in and for
said county, personally appeared W. E. Renshaiv, to me per-
sonally known to be the same person described in and who
executed the within declaration of occupation and acknowl-
edged that he signed, sealed and published the same as his
free and voluntary act and deed for the uses and purposes
therein set forth.
Witness my hand and notariaf seal this 22nd day of
January, A. D. 1903. Joseph K. Bozard,
[SEAL.] Notary Public.
STATE OF COLORADO, City and County of Denver: ss.
W. E. Renshaw, of the County of Clear Creek, State of
Colorado, being first duly sworn according to law deposes
and says : That he is a citizen of the United States over
the age of 21 years ; that he is the owner by pre-emption,
location and occupation of the foregoing tunnel site, the
said tunnel being prosecuted for the development of lodes
belonging to said affiant ; also for the discovery of other
lodes ; affiant further says that he has expended in actual
work and improvements on said tunnel not less than forty
thousand dollars, and that said tunnel has been already run
the distance of 1,000 feet, and that it is bona fide his inten-
tion to prosecute work on said tunnel so located and de-
scribed with reasonable diligence for the purposes therein
set forth. W. E. RENSHAW.
Subscribed and sworn to before me this 22nd day of
January, A. D. 1903. Joseph K. Bozard,
[SEAL.] Notary Public.
Before recording place at the mouth of tunnel
the
TUNNEL, SITES. 229
LOCATION NOTICE.
The Hall Tunnel and Tunnel Site, located this Jan-
uary 22nd, 1903, by W. E. Renshaw. Course S. 17° 38' E.
3,000 feet to end post, from which end post Republican
mountain bears N. 40° W., Saxon mountain bears N. 39° 40'
E., stump 9 inches diameter marked "B. T. & H. T." bears
S. 86° 15' W. 18.4 feet.
Height of tunnel 7 feet, width 8 feet.
I claim all lodes to be discovered in this tunnel and
not previously known to exist, within 1,500 feet on each side
of tunnel as staked on the ground.*
W. E. RENSHAW.
DUMP LOCATION.
If ground for a dump is claimed, add, in the loca-
tion certificate after the*:
"I also claim a square tract of land 125 feet on each
side of the mouth of tunnel and extending 250 feet imme-
diately below the mouth of the tunnel, as staked upon the
ground, for dumping purposes."
And to the notice after the* add:
"Dump 250 feet square as staked."
The actual location, of course, consists in setting
the stakes as called for in such notices, and in the
starting of the tunnel in good faith.
Location of Lodes Cut in a Tunnel.
They should be staked and recorded exactly as
in the case of lodes discovered at the surface, except
that no discovery shaft is required — the discovery in
the tunnel taking its place — and the location stake
or notice should be set on the surface at a point
midway between side lines and above the discovery
in the tunnel. Such location notice, as well as the
location certificate, should state the fact that the
lode was discovered in the tunnel and the number
of feet in from the mouth. In fixing the surface
line, approximate calculations should be made for
the dip. In Ellet v. Campbell, 18 Colo. 510, affirmed
167 U. S. 116, it was held that the discovery need not
be followed by location; but the U. S. Supreme Court
conceded that it might be required before patent
could be secured. If the width on each side had not
been previously fixed by proper form of tunnel loca-
230 TUNNEL SITES.
tion, the tunnel discoverer would not be allowed, in
any event, more than a reasonable time to elect
where he would take his 1,500 feet.
In Brewster v. Shoemaker, 63 Pac. 309, the lode
was cut 250 feet below the surface in an unrecorded
cross-cut. The dip was calculated to the surface
and discovery notice posted on the center line, refer-
ring to the discovery in the tunnel and the claim
was staked and recorded. Held that the location
was valid and that no proving up between surface
and the tunnel was required. The case holds also
that the fact that the tunnel had been driven across
patented ground belonging to strangers was not a
point which could be raised by third parties.
The Right to Penetrate Tinder Other Lands.
The right to tunnel has been exercised since
lode mining began on the Pacific slope. Such claims
are frequently mentioned in the district rules and
were recognized by Colorado statute as early as 1861.
The trespass of a tunnel cutting through country
rock across a claim at great depth is not of that
class denominated as destructive or irreparable, but
it opens a private back door to the miner's under-
ground wealth.
And applying the theory that every surface
claimant owns to the center of the earth, no man has
a right to drive a tunnel underneath the property
of another without his license or consent.
Such right was constantly exercised without
much question and it had been expressly held that
it might be asserted under district rules. — Bliss v.
Kingdom, 15 M. R. 239.
But, especially since the sweeping demands of
tunnel sites after the Rico-Aspen decision, compelled
miners in self-protection to check their encroach-
ments, any implied license to penetrate under pre-
vious locations or patents without grant or permit
has been expressly denied. The decisions to this
effect have been uniform and they have been followed
by the National Supreme Court. — Richards v. Dower,
TUNNEL SITES'. 231
64 Cal 62; 73 Cal. 477; Amador Co. v. Dewitt, 73
Cal. 482; Calhoun Co. v. Ajax Co. 182 U. S. 499.
A party has no right to tunnel through another's
patented ground to cut a vein whose apex is within
his own patented lines. — St. Louis Co. v. Montana
Co. 113 Fed. 900.
In Cone v. Roxana Co. (HALLETT J., MS.) the
Court held the Colorado Tunnel Act of 1897, giving
all tunnels the right to pass through any prior loca-
tions or patents, to be in conflict with the Stato Con-
stitution.
Where the tunnel has already been driven
through the claim, it seems that ejectment is the
proper remedy, and not injunction. — Creede Co. v.
Uintah Co. HALLETT, J. MS.
Unrecorded Tunnels.
Any party running a tunnel would probably hold
the tunnel itself (i, e. the bore as far as actually
run), without any record whatever (8 L. 0. 11}.
This is done every day in the case of cross-cuts,
which are simply tunnels on a small scale. But to
claim any rights for its line or otherwise under the
Act of Congress it should be staked and recorded.
Of course, a lode discovered in a tunnel, after the
lode has been duly located and recorded on the tunnel
discovery is as valid upon an unrecorded as upon a
recorded tunnel, its title having by such independent
location become a matter wholly apart from the tun-
nel location,
Failure to Work.
The right to blind lodes is conditioned upon
prosecuting work with "reasonable diligence." In
the Rico Aspen case, 66 Fed. 206, the court intimates
that this clause should receive a strict construction,
and that prompt and energetic prosecution of the
work should be required.
Failure to work for six months deprives the Tun-
nel Site of its claim to blind lodes, but does not affect
its right to continue its bore through claims in ad-
vance of it. — Fissure Co. v. Old Susan Co. 63 Pac. 587.
232 TUNNEL SITES.
Abandonment.
A tunnel may, like any other kind of claim, be
abandoned; but neglect to work does not operate to
effect an abandonment; such neglect only operates to
deprive it of tunnel rights along its line. — Fissure Co.
v. Old Susan Co. 63 Pac. 586. The fact that no labor
has been done for many years is evidence of abandon-
ment, but not conclusive. As before stated (page
85) abandonment is a question of fact, and in the
case of tunnels is wholly independent of the annual
labor.
Patent — Adverse Claim.
There is no provision for patenting a tunnel site.
Before the Rico Aspen case it was held that it could
maintain an adverse claim for the protection of its
line and Tunnel rights. — 29L. D. 235; Back v. Sierra
Co. 11 Pac. 83; and that it could enjoin patent pro-
ceedings on a lode claim until it should be demon-
strated that the lode would not be cut in the tunnel.
But all these rulings were prior to the construction
of the Tunnel section by the Court of last resort, and
under that decision it is held that a tunnel need not
adverse any application for patent on a lode in ad-
vance of its breast. That when its bore penetrates
under the patent it can claim the ground as owner.
(The title to a lode so patented stands in a class
anomalous under this decision to any other title
known to the common law.) As to lodes already cut
in the tunnel, at the time of the application, we as-
sume that they should adverse. It is hardly possible
to imagine that the court could hold tunnel-cut lodes
to be exempt from what is required of all others in
like condition. And as to the tunnel adversing to
protect its easement or right to penetrate, if its estate
in the extralateral lodes not yet cut is saved without
adversing, it seems self-evident that the mere ease-
ment of its right to bore is protected.
A lode located on a tunnel discovery adverses,
of course, on its own merits as a lode location.
TUNNEL, SITES. 233
Annual Labor by Tunnel.
Sec. 1. — That section two thousand three hundred
and twenty-four of the Revised Statutes, be, and the same
is hereby, amended so that where a person or company has
or may run a tunnel for the purposes of developing a lode
or lodes, owned by said person or company, the money so
expended in said tunnel shall be taken and considered as
expended on said lode or lodes, whether located prior to
or since the passage of said act ; and such person or com-
pany shall not be required to perform work on the surface
of said lode or lodes in order to hold the same as required
by said act. — Feb. 11, 1875, Sup. p. 62.
The annual labor of $100 on each claim may be
performed under the above section by work done on a
tunnel, cutting, or which is driven to cut, such claims.
—5 L. 0. 5; Id. 34; 17 L, D. 190.
The Patent Expenditures of $500 may also be
made on such tunnel. — 4 L. 0. 67. A party may pat-
ent one lode on the line of his tunnel for each $500
of labor spent in driving the tunnel. — 30 L. D. 510.
Tunnels Over 3,000 Feet Long.
The A. C. expressly limits the claim of a tunnel
site to lodes not known to exist "within three thou-
sand feet from the face of such tunnel." Attempts
have been made to evade this provision by filing rec-
ords of a second tunnel to begin at a point 3,000 feet
in from the mouth of the tunnel projected from the
surface; i. e., to begin at the end of the first 3,000
feet, taking 3,000 feet more and even third and fourth
extensions have been so recorded.
We regard these locations as absolutely void.
But we draw the distinction between the right of a
tunnel to undiscovered lodes and its right to bore
through the mountain. The former is granted by
Act of Congress, is limited by its terms and cannot
be enlarged. The latter, the right to bore, is a mere
easement, exercised under district rules before the
Act, and there is no limitation on the claim of a tun-
nel to drive itself through the public domain as far
as its owners may desire to penetrate.
A tunnel in its record therefore, in our opinion,
can claim a right of way to drive to any expressed
234 TAXATION.
number of feet, but it cannot claim the statutory
tunnel right beyond the first 3,000 feet; and the loca-
tion of a second tunnel from the breast of the first
is an attempt by a self-serving Act to take from the
prospector's rights in the ground beyond 3,000 feet
an estate which the Act of Congress has not taken
from him.
TAXATION.
By the Colorado Revenue Act of 1902, mining
claims are required to be listed by the name, and
number of Survey Lot, when patented.
Mines are divided into two classes — producing
and non-producing. A gross output of $5,000 places
the mine in the first class, and it is to be assessed at
one-fourth of its gross output. If the net output
shows a profit of more than a fourth, such net out-
put is to be the valuation. Non-producing mines are
to be assessed like other real estate, at their sup-
posed actual value. Special provisions are made for
taxation of group claims and tunnel sites.
The owner is required to make return showing
the tonnage, freight and mill returns, as stated in de-
tail in the Act.
Possessory Title Taxable.
The estate in unpatented mining claims Is prop-
erty subject to the "right of taxation. — Forbes v.
Gracey, 14 M. R. 183; Seymour v. Fisher, 16 Colo. 188.
Notwithstanding the above declaration of taxable
status the possessory title has not, as a rule, espe-
cially under the Territorial organization, been as-
sessed, though taxes have always been levied on the
surface improvements when extensive.
Patented Claims, or those entered for patent are
of course assessed and taxed as other classes of real
estate. In Nevada, and other states, attempts, at-
tended with continued litigation, have been made to
LIENS. 23o
tax the net output. Such tax, so plausible in theory,
is unjust and grossly unequal after conceding the
fact that absolutely equal taxation cannot be realized
upon any theory of assessment. See Mercur Co. v.
Spry, 52 Pac. 382, construing the Utah law of this
character. Net proceeds of coal mines held taxable
in Montana. — Montana Go. v. Livingston, 52 Pac.
780.
Special Instances.
A mine cannot be sold for tax assessed against
improvements not found on the* mining ground.- —
Knox v. Higby, 18 Pac. 381.
Exemption as mining claim ceases when placer
ground is laid out into town lots. — Dyke v. Whyte,
29 Pao. 128.
Where surface arid minerals are separately owned
they may be separately taxed. — Cons. Coal Co. v.
Baiter, 26 N. E. 651; Stuart v. Com. 23 8. W. 367.
The number of the Survey Lot, in Colorado, is an
essential part of the description in a Tax deed. —
Hammon v. Nix, 104 Fed. 689.
LIENS.
How Affected by Patent.
R. S. Sec. 2332.— * * * Nothing in this chap-
ter shall be deemed to impair any lien which may have at-
tached in any way whatever to any mining-claim or property
thereto attached prior to the issuance of a patent. — Sec. 13,
A. C. July 9, 1870.
Patent, although relieving claims from adverse
rights, does not relieve from liens already attached
against the property. On the other hand, the pat-
ented title enures to the benefit of the lien holder. —
Butte Co. v. Frank, 65 Pac. 1.
Judgments are liens for the period limited by
statute in each State, usually six years, the time run-
ning either from the date of judgment or the date
of filing the transcript in the Recorder's office.
236 MINERS' LIEN.
A mortgage may be so drawn as to secure ex-
penses of mining as well as the original debt. — Char-
ter Oak Co. v. Stephens, 15 Pac. 253. Under an ex-
ceptional statute a miner's lien has been held to cut
out a prior mortgage (Atlantic Co. v. Ropes Co. 77 N.
W. 938), but as a general rule the mortgage takes
precedence of all debts incurred by the further work-
ing of the mine. The lien of neither mortgage, judg-
ment nor attachment, prevents the operation of the
mine without an injunction for the protection of the
security — and such' injunction will be granted only
in exceptional instances. — Vervalen v. Older, 10 .M.
R. 540; Chung Kee v. Davidson, 36 Pac. 519. Such
liens do not prevent the free severance and sale of
the ore. — Young v. Northern Co. 10 M. R. 596. The
debtor can continue to mine after sheriff's sale, dur-
ing the redemption period. — Ward v. Carp River Co.
15 N. W. 889.
By Act of 1894, p. 50, trust deeds in Colorado
must run to the "Public Trustee," otherwise they
can be foreclosed only as mortgages. Whatever form
is followed the Statute allows nine months for re-
demption. The common law mortgage, both for se-
curity to the creditor and for fairness to the debtor,
is to be preferred in all cases.
A mining partner in certain cases seems to have
a lien for his advances in excess of those of a co-
partner.— Duryea v. Burt, 11 M. R. 395; Beck v.
O'Connor, 53 Pac. 94; Childers v. Neely, 34 8. E. 828.
See MINERS' LIEN; EXAMINATION OF TITLE.
MINERS' LIEN.
To Whom Allowed by Colorado Act.
Sec. 4. — The provisions of this Act shall apply to
all persons who shall do work or shall furnish materials or
mining, milling or other machinery or other fixtures, as pro-
vided in Section 1 of this Act, for the working, preservation,
prospecting or development of any mine, lode or mining
claim or deposit yielding metals or minerals of any kind
MINERS' LIEN. 237
or for the working, preservation or development of any
such mine, lode or deposit, * * * — Acts of 1899, p. 266.
Several Claims Worked Together.
Provided, That when two or more lodes, mines or
deposits owned or claimed by the same person or persons
shall be worked through a common shaft, tunnel, incline,
adit, drift or other excavation, then all the mines, mining
claims, lodes, deposits and tunnel and mill sites so owned
and worked or developed shall, for the purpose of this Act,
be deemed one mine ; * * * — Id.
Mine Worked by Lessees.
Provided further, That this section shall not be
deemed to apply to the owner, or owners of any mine, lode,
deposit, shaft, tunnel, incline adit, drift or other excava-
tion, who shall lease the same in small blocks of ground
in areas, whether of surface or beneath the surface, not to
exceed 150 feet in length by the width of the claim and for
a. depth of 150 feet or less to one or more sets of lessees. —
Id.
Water Rights and Easements Included.
Sec. 7. — Such liens shall likewise attach to rights of
water and rights of way that may in any manner pertain
to any kind of property hereinbefore specified and to which
such liens attach. * * * — Id. 269.
A miner whose wages or contract money is in
default, secures a lien by filing with the County Re-
corder a statement substantially as follows:
FORM OF LIEN STATEMENT.
KNOW ALL MEN BY THESE PRESENTS : That I, Max
Dagenais, do hereby give notice of my intention to hold and
claim a lien upon the Thomas a'Kempis Lode Mining Claim
in Ruby Mining District, County of Gunnison, State of Col-
orado.
Said lien is claimed for work and labor done by me
upon said lode (or materials furnished ~by me to said lode
for the working and development of the same and used
therein), as miner for days pay, at the special instance and
request of J. G. Edwards, one of the owners or reputed
owners of said lode, between the first day of July, A. D.
1901, and the 25th day of December, A. D. 1902, both dates
inclusive, upon the following abstract of indebtedness :
Total amount of indebtedness $742.00
Total amount of credits 441.00
Balance due claimant $301.00
.238 MINERS' LIEN.
That the owners or reputed owners of said lode are
John L. Routt and J. G. Edwards.
Witness my hand this second day of January, A. D.
1903. MAX DAGENAIS,
Claimant.
STATE OF COLOKADO, County of Gunnison: ss.
Before me, the subscriber, Chas. E. Whitfteld, a Notary
Public in and for said county, personally appeared Max
Dagenais, who, being duly sworn, saith that the foregoing
statement and abstract of indebtedness, and the matters and
things therein set forth, are true to the best knowledge, in-
formation and belief of affiant. MAX DAGENAIS.
Sworn and subscribed before me this second day of
January, A. D. 1903. Chas. E. Whitfteld,
[SEAL.] Notary Public.
When the claimant is a sub-contractor or em-
ployed by a contractor, strike out
"J. G. Edwards, one of the owners or reputed owners
of said lode,"
and insert
"at the special instance and request of Daniel Roberts, a
contractor under the owners of said lode."
Sub-contractors must serve a copy of such state-
ment on the owner or his agent, at or before the time
of filing, but if neither the owner or agent can be
found in the County, an affidavit to that effect shall
be filed in lieu of service.
The time to file varies from one to three months
according to the class or nature of the claim.
Special provision is made in the Act for instances
where the names of the owners are unknown.
Six Months to Sue.
An action must be commenced to enforce the
lien within six months after work completed or the
lien is lost.
Where mines are worked as a group the whole
are considered as one mine for lien purposes. — Tre-
dinnick v. Red Cloud Co. 13 Pac. 152.
General Statutory Legislation.
Miners' or mechanics' liens are pure creations of
statute, but are allowed by specific legislation in all
MINERS' LIEN. 239
the States and Territories. They uniformly pre-
scribe some such statement or notice equivalent to
the above form, but the statute of the particular
State must be looked to for details.
Decisions.
A miner has no lien upon the ore. For rule
of distribution where work has been performed on
various parcels of group, see BassicJc Co. v. School-
field, 10 Colo. 46; Malone v. Big Flat Go. 18 Pac. 772. .
Lien allowed for pumping and stoping. — Ghappius v.
Blankman, 60 Pac. 926.
A party engaged in hauling ore from the mines
to the quartz mill has no lien on the mine. — Barnard
'v. McKenzie, 9 M. R. 403.
A mining foreman or superintendent has a lien.
— Palmer v. Uncas Go>. 70 Gal. 614; McLaren v.
Byrnes, 45 N. W. 143. See Smallhouse v. Kentucky
Go. 9 M. R. 388; Rara Avis Go. v. Bouscher, 9 Colo.
385.
An expert has no lien for making report on a
mine. — Lindemann v. Belden Go. 65 Pac. 403.
Lien of Surveyor or Civil Engineer.
M. A. S. Sec. 2874.— The provisions of this act shall
apply to surveyors, civil and mining engineers doing any
work of surveying or platting of any mines, mining claims,
lodes or mineral deposits, and they shall have like lien and
claim as other persons under the provisions of this act. —
Sec. 8, March 2, 1883.
The following form is adapted from the statute
to the case of surveyor's lien:
FORM OF STATEMENT FOR SURVEYOR'S LIEN.
KNOW ALL MEN BY THESE PRESENTS : That I, W. H.
Poicless, do hereby give notice of my intention to hold and
claim a lien upon all the following described property, to
wit : The St. Francis de Sales lode mining claim, in Tarry
All Mining District, County of Park, State of Colorado. Said
lien is claimed for work and labor done by me in survey-
ing and platting said lode, at the special instance and request
of Thomas Cornish, the owner or reputed owner of said lode,
by running the lines of the same for United States patent,
as Survey Lot No. 383, and making plat of the same for the
same purpose between the 17th day of March and the second
240 MINERS' LIEN.
day of April, A. D. 1903, both dates inclusive, upon which
work accrued the following abstract of indebtedness :
Whole amount of debt $60.00
Whole amount of credit 20.00
Balance due the claimant $40.00
Witness my hand this 9th day of April, A. D. 1903.
W. H. POWLESS.
Verify as on page 238.
To claim a lien the surveyor is not required to
be a U. S. Deputy; and an underground as well as
a surface survey is protected. No lien is given in
terms for surveying a mill site.
Mine Under Lease.
The Colorado Act of 1895, was declared inopera-
tive to hold the mine for debts incurred by the les-
see.— Wilkins v. Abell, 58 Pac. 612; but in 1899 there
was passed a similar Act with an additional section,
which renews the doubt that arose under the former
act. There are no reported cases under the present
Act.
This section (Sec. 5, 1899, p. 267) as it reads is
simply unintelligible, but it seems to suggest an in-
timation to hold the claim for work done "with the
knowledge of the owner" unless a certain notice is
posted on the mine, which may be in form as follows:
NOTICE.
February 27, 1903.
Notice is hereby given to all persons performing labor
or furnishing skill, materials, machinery or other fixtures,
or supplies of any kind to or on the Gen. Gronje mine, upon
which this notice is posted, that the undersigned, the owner
of said mine, will not be responsible for any labor per-
formed on, or any skill, materials, machinery, fixtures or
supplies of any kind furnished to said mine, nor shall the
interest of said owner be subject to any lien for the same.
And all persons are hereby notified that the said mine and
premises have been leased to F. M. Roberts.
PAUL KRUGER.
The title is never bound by lien for work done
for a lessee unless by Statute expressly so provid-
ing. The Arizona Statute does not give a lien in
such case. — Griffin v. Hurley, 65 Pac. 147.
CONVEYANCE. 241
By Option Holder.
When a mine is worked under an option of sale
the terms of such contracts vary so widely that no
general rule can be safely stated as to when liabil-
ity attaches against the fee simple title. On a lease
containing covenants for special work with privilege
of purchase the owner's estate has been held liable
in Eaman v. Bashford, 37 Pac. 24; Hines v. Miller,
55 Pac. 401; Colo. I. Wks. v. Taylor, Id. 942; Hendrie
Co. v. Holy Gross Co. 68 Pac. 785. To the contrary.—
Maher v. Shull, 52 Pac. 1115; Block v. Murray, 31
Pac. 550; Hadley Co. v. Gumming s, 64 Pac. 443; Reese
v. Bald Mt. Co. 65 Pac. 578.
The employe of a licensee has no lien. — Jurgen-
son v. Diller, 46 Pac. 610. Nor the employe of the
claimant of a hostile title. — Idaho Co. v. Winchell,
59 Pac. 533.
CONVEYANCE OF MINING PROPERTY.
The ordinary printed forms of deeds are usually
sufficient to convey mining claims, but owing to the
common practice of employing conveyancers totally
disconnected with the legal profession, few abstracts,
when the deeds, as recorded at length, are examined
from the memoranda on the abstract, can show an
unbroken line of perfect conveyances.
A common imposition is to present a deed in
the form of a warranty purporting to convey "all
the right, title and interest of the party of the first
part," which amounts to no more than a quit-claim;
or to make the consideration of a warranty deed nom-
inal, which has the same practical effect.
WARRANTY DEED ON PATENTED CLAIM.
THIS INDENTURE, made this tenth day of January, in
the year of our Lord one thousand nine hundred and three,
between Henry P. Lowe, of the City and County of Denver,
State of Colorado, party of the first part, and John 8. Held,
of Juneau, Territory of Alaska, party of the second part :
242 CONVEYANCE.
Witnesseth, that the said party of the first part, for
and in consideration of the sum of ten thousand dollars, to
him in hand paid by the said party of the second part, the
receipt whereof is hereby acknowledged, hath granted, bar-
gained and sold, and by these presents doth grant, bargain,
sell and convey unto the said party of the second part, his
heirs and assigns :
All the following described real estate, situate in Al-
hambra Mining District, County of Park,, State of Colorado,
to wit :
The Fickle Goddess Lode Mining Claim, known as Sur-
vey Lot No. 777, being 1,500 feet in length and 300 feet in
width, situate on South Mountain.
Together with all and singular the mines, minerals,
lodes and veins within the lines of said claim, and their dips
and spurs and all dumps, plant, fixtures, improvements,
rights, privileges and appurtenances thereunto in anywise
belonging.
To have and to hold the lands, tenements and heredita-
ments hereby conveyed unto the said party of the second
part, his heirs and assigns, forever.
And the said party of the first part, for himself, his
heirs, executors and administrators, doth hereby covenant
and agree with the said party of the second part, his heirs
and assigns, that the said premises and every part thereof,
are free and clear of and from any and all liens, incum-
brances, trusts and taxes, and that he, the said party of the
first part, his heirs, executors and administrators, unto the
said party of the second part, his heirs and assigns, the
said premises and every part thereof, against himself, his
heirs and assigns, and every other person lawfully claiming
or to claim the same or any part thereof, SHALL AND WILL
WARRANT AND FOREVER DEFEND; alioays saving
and excepting the same provisos, reservations and limita-
tions contained in the patent of the United States issued for
said survey lot.
In witness whereof the said party of the first part
hath hereunto set his hand and seal.
HENRY P. LOWE. [SEAL.]
STATE OF COLOKADO,, City and County of Denver: ss.
I, Joseph K. Bozard, a Notary Public in and for said
County, do hereby certify that Henry P. Loive, who is person-
ally known to me to be the same person described in and
who executed the within indenture, personally appeared be-
fore me this day and acknowledged that he signed, sealed
and delivered the said indenture as his free and voluntary
act and deed for the uses and purposes therein set forth.
Witness my hand and notarial seal this tenth day of
January, A. D. 1903. Joseph K. Bozard,
[SEAL.] Notary Public.
CONVEYANCE. 243
The Date of Expiration of Commission Is Re-
quired to be noted on all acknowledgments and affi-
davits taken before a notary public under Colorado
Statute.— M. A. 8. § 8281.
Warranty of Claim Entered for Patent.
Use the same form inserting the words "to be"
before "issued" and adding the words "as entered
in the Land Office" after the words "said survey lot"
in the saving clause of the warranty. *
Warranty of Possessory Claim.
Use the same form as for "Patented Claims,"
omitting the words "Survey Lot No. ," and omit-
ting the clause in italics. Instead of such clause in-
sert "always saving and excepting the United States
of America."
Special Warranty.
When the grantor desires to warrant his own
chain of title, but not against parties claiming under
other locations, insert before the words "shall and
will warrant," this clause:
"By, through or under the said party of the first
part, or his grantors."
QUIT-CLAIM DEED.
THIS INDENTURE, made this thirty-first day of Janu-
ary, in the year of our Lord one thousand nine hundred and
three, between Thomas J. Maloney, of the City and County of
Denver, State of Colorado, party of the first part, and W. K.
Lee, of the County of £weetwatert State of Wyoming, party
of the second part :
Witnesseth, that the said party of the first part, for
and in consideration of the sum of one thousand dollars, to
him in hand paid by the said party of the second part, the
receipt whereof is hereby acknowledged, hath remised, re-
leased and quit-claimed, and by these presents doth remise,
release and quit-claim unto the said party of the second
part, his heirs and assigns :
All the following described real estate, situate in The
Consolidated Ten Mile Mining District, County of Summit,
State of Colorado, to wit :
The GRACE CURRIER lode mining claim, Survey Lot No.
666, 1,500 feet in length and 150 feet in width, located on
the west slope of £heep Mountain.
244 CONVEYANCE.
Together with all and singular the lodes and veins
within the lines of said claim, and the dips, spurs, mines,
minerals, dumps, fixtures, improvements, rights, privileges
and appurtenances thereunto in any wise belonging.
To have and to hold the lands, tenements and heredi-
taments hereby conveyed unto the said party of the second
part, his heirs and assigns, forever. '
In witness whereof, the said party of the first part
hath hereunto set his hand and seal.
THOMAS J. MALONEY. [SEAL.]
Acknowledge as on page 2^2.
A Quit Claim Deed is commonly used where the
title is possessory, and where the title is clear it
passes the title as effectually as a warranty. But the
grantee in a quit-claim may be chargeable with no-
tice of equities not chargeable to a purchaser by a
general or special warranty. — Hannan v. Seiden-
topf, 86 N. W. 45.
Mining Deeds.
There has come into use a form of deed called
a Mining Deed, the blanks for which vary. They
contain after the space left for description, the for-
mula "Together with the Dips," etc., substantially
as in the above forms. A deed to a mine does not
differ from a deed to other real property in the same
condition of title, except in the description, and the
phrase "Together with," etc., which is really part of
the description. Most of these deeds contain in their
granting clause the operative words of a warranty
in connection with the operative words of a quit-
claim— "grant, bargain and sell," "remise, release
and quit-claim."
But their legal effect is more that of a quit-claim
than that of a warranty, except that the words "grant,
bargain, sell and convey" have the special force of
passing an after acquired title, and by legislation the
word "grant" in some States is made to imply a war-
ranty against incumbrances. In examining abstracts
they will of course be considered as transferring the
grantor's interest, but no lawyer or trained convey-
ancer would advise such deed, or any form of stat-
CONVEYANCE. 245
utory deed where certain words are declared to have
a certain talismanic charm, in preference to the
known, fixed and understood grants and covenants
of a common law warranty.
Short Form of Deed.
By Colorado Act of 1887 (Laws, p. 226) short
forms of deeds were introduced.
"The implied warranty which the vendor in igno-
rance of its nature is made liable for by this stat-
utory form, is totally inapplicable to mining claims
whether patented or possessory. It would make the
vendor liable, if liable for anything, for a fee simple
title even to making good the exceptions on the face
of the patent. If used in conveying a possessory
claim there is a breach of the warranty the moment,
the instrument is delivered. What is conveyed by
the so-called short form of quit-claim deed, it is im-
possible to say. The entire set of forms should be
discarded."
The above paragraph is the language used about
these statutory forms of deeds in the sixth edition of
this book. We have never qualified it and only add
that the Act was repealed at the 1889 session.
Description.
The exact description of a located lode or placer
is "The Lode Mining Claim" or "The
Placer Mining Claim." If patented add the words
"Survey Lot No " The number of the min-
eral entry is superfluous, and to describe the premises
by metes and bounds is not good conveyancing,except,
of course, when a' fraction of a claim is conveyed.
The name is usually a sufficient description. — Smith
v. Sherman Go. 31 Pac. 72; Glacier Go. v. Willis, 127
U. S. 472. The word "mine" is a dangerous term and
to be avoided, as often an entire group of claims are
known collectively by the name of one mine, and
such entire group might pass, and, in fact, might be
intended to pass by the use of such sweeping term.
— Smith v. Sherman Co. 31 Pac. 72. The word "lode"
246 CONVEYANCE.
is commonly used as synonymous with lode mining-
claim. — Buckeye Co. v. Carlson, 66 Pac. 168.
Deed Subdividing Lode Claim — Dip.
Owing to the relation of the dip to the strike,
when a line is drawn across a lode claim at right
angles to the side lines at the surface, such line be-
ing intended for the division line between the part
retained and the part sold, such line when carried
vertically downward may cut off the vein on its dip
in such a way as to divide it in an unexpected man-
ner. If, for instance, at the surface, it begins at
the "west end of discovery shaft," it may leave the
bottom of such shaft entirely on one fraction of the
lode within a comparatively few feet of sinking.
Such result or a similar result will invariably occur
where the vein has a dip, unless the end lines are at
an exact right angle to the strike of the vein. — See
Plat, p. 166.
Apex Eights of Irregular Fraction.
Where the whole lode is conveyed there is no
doubt that the deed carries the right to follow it on
the dip to the full extent the grantor may have had
such right. The same, if a certain number of feet
off either end of the claim are conveyed, to the extent
of feet granted.
But where a strip or irregular fraction of the
claim is carved out and sold the question of the apex
rights of such segregated parcel arises, and the
tendency of the decisions is that the grantee has the
right to follow on the dip whatever veins may apex
on the ground. Of course such right would be lim-
ited by the end lines and planes projected from the
end lines of the claim.
In Stinchfteld v. Gillis, 30 Pac. 839, it was held
that all veins apexing within the surface area are
conveyed although carried by the dip into other land
of the grantor.
In Montana Co. v. St. Louis Co. 102 Fed. 430, the
Plaintiff had conveyed a strip of ground to Defend-
ant, together with the dips, metals, etc., in the usual
CONVEYANCE. 247
language of a mining deed. The deed had been de-
livered on settlement of an adverse claim. The Court
held that it did not deprive Plaintiff of his right to
follow a vein apexing outside the strip, upon its dip
underneath the strip.
In Boston Co. v. Montana Co. 89 Fed. 529, it was
held that the grantee could follow on the projection
of one of the lines of the pentagonal tract described,
the same as if it were an end line in a patent. This
gave to one party diverging, and to the other, con-
verging end planes. The contention that each party
was to follow as much of the vein as apexed within
his own territory both governed by parallel end line
planes always seemed to us the more just, simple and
reasonable rule to apply to this class of cases.
Since the above paragraph was in press the rule
contended for has been adopted by the Supreme Court
of Montana, and the ruling in the Federal case disap-
proved.— Montana Co. v. Boston Co. 70 Pdc. 1114.
Cross Lodes.
The Stinchfteld case, supra, as reported in 40
Pac. 98, holds that the grantor cannot claim for his
vein retained, any rights as a cross lode, without
special reservation to that effect.
Same Ground Covered by Conflicting Locations.
The owners of the Edna, after record, changed
their stakes so as to produce a conflict with the
Lightning. They then sold the Edna by the recorded
description and afterwards bought the Lightning.
Held that they were estopped to set up the Lightning
title against the ground in conflict. — Shreve v. Copper
Bell M. Co. 28 Pac. 315.
Where the same lode or ground is covered by
more than one location owned by the same grantor
his deed of one may be construed to convey the title
under both locations. — Weill v. Lucerne Co. 3 M. R.
373; Phillpotts v. Blasdel, 4 M. R. 341; Lebanon Co. v.
Cons. Rep. Co. 6 Colo. 372; Shoshone Co. v. Rutter, 87
Fed. 801. For construction of conveyance in general
terms after portion of a survey lot had been segre-
248 CONVEYANCE.
gated by judgment, see Mollie Gibson Co. v. Thatcher,
57 Fed. 865.
Severance of Mines and Surface Reservation.
Where minerals are specially granted or where
surface is granted without the minerals, there should
be special covenants for support of the soil and build-
ings or for right of entry to get at the minerals re-
served, as the case may be; although in such cases
those incidents are implied to the extent necessary to
enjoy each severed estate. See p. 218.
FORM OF RESERVATION.
Insert before the clause "To have and to hold:"
Always saving, excepting and reserving unto the said
party of the first part, his heirs and assigns, all mines and
minerals, lodes, veins and deposits found or to be found
under or within the lines or area of the above granted prem-
ises with such reasonable use of the surface ground as may
be necessary to win, work and carry away said minerals
so excepted "and reserved. — Rogers p. 880; Bainbridge p. 1^80.
Witnesses.
No attesting witnesses are required to a deed con-
veying land in Colorado or the other States or Terri-
tories of the Pacific slope excepting Utah and Wyo-
ming, which require one attesting witness, and Ore-
gon which requires two. A deed signed with the
grantor's mark -must be always witnessed on general
principles.
Dower — Wife's Signature.
The wife is not required to join in the husband's
deed nor the husband in the wife's deed in Colorado,
Nevada, North or South Dakota, or Wyoming.
In all those States where the right of dower exists
the wife must of course join in the husband's deed, in
order to bar her right. These States (and the Eastern
States generally) are Alaska, Montana, Oregon and
Utah. In Arizona and New Mexico it is questioned
whether the right of dower exists under the A. C.
March 3, 1887.— 24 U. 8. Stat. 638. In Arizona, Cal-
ifornia and Washington, in a conveyance of com-
munity property, the wife must join in the husband's
CONVEYANCE. 249
deed — and in the two latter states the husband must
join in the wife's deed.
The widow has no right of dower in a mining
claim held by possessory title. — Black v. Elkhorn Co.
163 U. S. 445- Otherwise as to mines owned in fee. —
Whittaker v. Lindley, 3 8. W. 9; Stoughton v. Leigh,
5 M. R. 47.
Husband's Signature Necessary.
The husband is required to join in the wife's deed
in Idaho, New Mexico, Washington and Oregon. In
all cases where the husband is required to join with
the wife, or the wife with the husband in any convey-
ance, it is assumed that a separate acknowledgment
is required to be made by the wife.
Acknowledgments.
An acknowledgment before a notary public is cus-
tomary and valid in any of the Pacific States or Ter-
ritories, though the land lies in one state and the
acknowledgment is taken in another. Where the deed
conveys land in another State a commissioner of
deeds for such State, if accessible, is always author-
ized to take the acknowledgment. When taken be-
fore this officer no certificate of his official character
is required.
Other officers are named in the statutes of the
several States, but a notary public within the State, a
commissioner or notary without the State, and a con-
sul in foreign countries, are legalized to prove deeds
by this form in all the aforesaid States and Territo-
ries.
For Form of Acknowledgment by an individual
see page 242. The following are correct forms in the
case of corporations and deeds executed under Power
of Attorney:
ACKNOWLEDGMENT BY CORPORATION.
STATE OF COLORADO, Hinsdale County : ss.
I, William L. Siegmund, a Notary Public in and for
said County, do hereby certify that John E. Searles, Pres-
ident of the Coldstream Mining Company, who is personally
known to me to be such President, and the same person who
as such President, affixed the corporate name and seal of
250 CONVEYANCE.
said Company to the above Indenture, personally appeared
before me this day and acknowledged the same to be the
free and voluntary act and deed of the said corporation
for the uses and purposes therein set forth.
Witness my hand and Notarial Seal this third day of
January, A. D. 1903. Wm. L. Sieymund,
[SEAL.] Notary Public.
BY ATTORNEY IN FACT.
UNITED STATES OF AMERICA, DISTRICT OF COLORADO : ss.
I, Robert Bailey, Clerk of the Circuit Court of the
United States in said District, do hereby certify that E. M.
Titcomlj, Attorney in Fact, of the within named Arthur B.
Frenzel, who is personally known to me to be such Attorney
in Fact, and the same person within described as such At-
torney in Fact, and who affixed the name and seal of his
said principal to the within Indenture, personally appeared
before me this day and acknowledged the said Indenture to
be his free and voluntary act and deed and the free and vol-
untary act and deed of the said Arthur B. Frenzel for the
uses and purposes therein set forth.
Witness my hand and the Seal of said Court, this
third day of January, A. D. 1903. Robert Bailey,
[SEAL.] Clerk of Court.
Stamps.
By the Spanish War Revenue Act stamps were re-
quired on certain deeds between July 1, 1898, and
July 1, 1902.— 30 Stat. L. 460; 31 Stat. L. 946; A. G.
April 12, 1902.
Agreements for Deed are usually in the shape of
a title bond, time being made of the essence of the
contract in every form in use; but an executory con-
tract in any other form under seal, is of equal valid-
ity.—M. A. S. § 446-448. A title bond or any other
paper purporting to allow an option to purchase
should always show more than a nominal part of the
consideration as paid or contain some express cove-
nant by the vendee, to make some payment or ex-
penditure, as for instance to do certain specified
work upon the property — to avoid the possibility of
its being held void for want of mutuality.
Naked title bonds have been ruled to be mere
options, and therefore without consideration and re-
vocable.— Smith v. Reynolds, 2 M. R. 227; Finerty v.
Fritz, 1 M. R. 437; Gordon v. Darnell, 2 M. R. 220. But
i CONVEYANCE. 251
where the holder of the bond pays a part of the con-
sideration or agrees to develop the property or in
any other manner gives a valuable consideration the
agreement is valid as a contract, and when recorded
binds the property.
TITLE BOND.
KNOW ALL MEN BY THESE PRESENTS, That I, Dennis
Sullivan, of the City and County of Denver, State of Colorado,
am held and firmly bound unto David F. Day, of the County
of Our ay, in said State, in the penal sum of forty thousand
dollars, to be paid to the said David F. Day, his heirs, execu-
tors, administrators or assigns ; to which payment, well and
truly to be made, / do bind myself, my heirs, executors and
administrators, and every of them, jointly and severally
firmly by these presents.
Witness my hand and seal, this fourth day of May, in
the year of our Lord one thousand nine hundred and two.
WHEREAS,, The above bounden obligor hath this day
sold to the said David F. Day certain real estate situate in
Battle Mountain Mining District, County of Eagle, State of
Colorado, to wit : The Legality Lode Mining Claim, Survey
Lot No. 99, containing 1,500 feet in length by 300 feet in
width, on Battle Mountain.
Together with all and singular the lodes and veins
within the lines of said claim (and not excepted on the
official plat) and all mines, minerals, dumps, plant, fixtures,
machinery, tramways, improvements, rights, privileges and
appurtenances thereunto in anywise belonging.
For the sum of twenty thousand dollars to be paid to
the said obligor, his executors, administrators or assigns,
or deposited to his credit in the First National Bank, Denver,
Colorado, on or before the tenth day of May, A. D. 1903, and
for the further consideration that said obligee shall, before
said last mentioned date, expend the sum of at least one
thousand dollars in the actual underground development of
said property.
Now, THEREFORE, the condition of the above obliga-
tion is such that if the above bounden obligor, his heirs or
assigns, on payment or deposit of the said sum of twenty
thousand dollars in manner aforesaid, and expressly within
the time limited as aforesaid, time being of the essence of
this contract, as to such payment or deposit, shall make,
execute, acknowledge and deliver at his own cost and
charges, good and sufficient deed or deeds of general war-
ranty to the said David F. Day, his heirs and assigns, or to
such person, persons or company as he shall nominate, con-
veying said premises with good and perfect title, free from
encumbrance, then this obligation to be void, otherwise to
remain in full force and virtue.
DENNIS SULLIVAN. [SEAL.]
252 CONVEYANCE.
In consideration of the option expressed in this ob-
ligation, I agree to expend the sum of $1,000 therein men-
tioned in the actual underground development of the above
described property within three months from the date of
this Bond.
Witness my hand and seal this fourth day of May, A. D.
1902. DAVID F. DAY. [SEAL.]
Cross propositions do not make a sale. — Bow-
man v. Patrick, 36 Fed. 138. Where one of several
parties executes a mining agreement on behalf of
all, with their knowledge, they may (in instances)
be held without signing.— Rice v. Ege, 16 M. R. 179.
Time Is of the Essence of the Contract in a title
bond on a mine. — Presidio Co. v. Bullis, 4 8.
W. 860; Idaho Co. v. Union Co. 47 Pac. 95. Or in
suit for specific performance. — Durant v. Comegys,
28 Pac. 425. And in mining contracts generally. —
Waterman v. Banks, 144 U. 8. 394- It may be made
so either from the nature of the subject matter or
the contract of the parties. — Settle v. Winters, 10
Pac. 216.
But it may be waived verbally or by allowing
the vendee to work on assurances of extension. —
Mason v. Sieglitz, 44 Pac. 588; Presidio Co. v. Bullis,
supra.
WORKING CONTRACT SALE.
For and in consideration of the sum of $500 to me
in hand paid by Orrin F. Place, the receipt whereof is hereby
acknowledged, I, Charles H. Morris, do hereby agree to place
said Orrin F. Place in full and sole possession and control
of the Fair Deceiver Lode Mining Claim, situate, etc., with
authority to work and prospect the same as he sees fit for
the term of sixty days from date, provided only, that such
work be done in good and workmanlike manner, and that
any ore taken out shall be separated and left on the dump,
and not removed during the lifetime of this contract. And
at any time within said period, on tender to me of the fur-
ther sum of $4,500, I agree to deliver a good and sufficient
warranty deed to the said Orrin F. Place, his heirs and as-
signs, conveying said above described premises absolutely and
clear of encumbrance.
In case no such tender is made, said sum of $500 is
to be treated as the consideration of this option and right
of testing and to be and remain my property as liquidated
damages. i
CONVEYANCE. 253
In case my title is found defective and I fail to make
it good and marketable within said period, I agree to pay
said Orrin F. Place the cost of abstract and the vendee's at-
torney's reasonable charges for examination of title, and
to refund said sum of $500.
The ore taken out during said period is to be the prop-
erty of the party who remains or becomes the owner at
the end of said period of sixty days.
Time is of the essence of this contract in all particu-
lars.
Witness my hand and seal this 10th day of May, A. D.
1902.
CHARLES H. MORRIS. [SEAL.]
In consideration of the delivery to me of the above
option, I agree to expend at least $500 in work upon the
above described property within the lifetime of said option.
Witness my hand and seal the date above written.
ORRIN F. PLACE. [SEAL.]
SALE SUBJECT TO EXAMINATION OF TITLE.
The undersigned, Sam W. Jones,, of Breckenridye,
State of Colorado, hath agreed to sell to Frank M. Taylor,
of Denver, in said State, and said Frank H. Taylor hath
agreed to buy of and from said Sam W. Jones the Corinne
Rowland Lode Mining Claim, situate in Gregory Mining Dis-
trict, Gilpin County, Colorado, for the consideration of $18,-
000 to be paid within six months from date, fee simple (or
good possessory) title to be delivered and warranted clear of
liens. Title subject to approval of Chas. C. Post, attor-
ney for purchaser. Cost of deeds to be paid by vendor ;
of examination of title by purchaser. Vendor to deliver
at his own cost certified abstracts of title within ten days
to said attorney. Deeds to pass on tender of the sum
above mentioned within the period of six months above lim-
ited.
If no tender is made wTithin such period the purchaser
shall be in default unless he sh.ow the title materially
defective, or a prior breach of contract by vendor, or that
material misrepresentations as to the mine or mineral have
been made to him by the vendor or by parties in the inter-
est of the vendor, and thereupon either party may proceed
for specific performance or for damages or both or other-
wise as he may be advised.
Witness the hands and seals of said parties this
2/fth day of April, A. D. 1902.
SAM W. JONES. [SEAL.]
PRANK M. TAYLOR. [SEAL.]
254 CONVEYANCE.
CONTRACT TO SELL AND TO BUY.
I, Edward 0. Wolcott, vendor, hereby agree to sell to
Charles 8. Thomas, and I, Charles 8. Thomas, purchaser,
agree to buy of said Edivard O. Wolcott, the Dream Placer
Mining Claim, situate, etc.
The agreed consideration of said sale is $1,000 cash
in hand paid, the receipt whereof is hereby acknowledged ;
$3,000 to be paid within sixty days from the date hereof,
and $6,000 within ninety days from such date, making a
total consideration of $10,000.
Said vendor within ten days from date will deliver
to purchaser, or his attorney, an abstract of title duly cer-
tified by the clerk and recorder of said county, or by some
reputable abstract office, together with all the original title
papers which are in his possession or within his power to
produce.
And within said time will place in escrow in the
First National Bank of Denver a good and sufficient war-
ranty deed conveying to said Charles 8. Thomas, or such
person as he shall nominate, the said premises clear of en-
cumbrance, to be by such bank held in escrow until final
payment be made under this contract or default is made
under the same. Deposit in said bank to the credit of
vendor shall be equivalent to payment of any of said in-
stalments.
Time is of the essence of this contract as to each
and every instalment, and if any instalment or instalments
be not paid within the time or times hereby limited there-
for, all previous instalments shall be and remain the prop-
erty of said vendor, the deed in escrow shall be returned
to him for cancellation, and the property shall remain his
own, unaffected and unencumbered by this contract. But
if he fail to deliver abstract within said period, or to de-
posit said deed in escrow, or if his title prove encumbered
or otherwise not marketable, vendee may recover any and
all instalments paid, or may sue for specific performance
and for a perfect title, or for damages or otherwise as he
may be advised.
Witness the hands and seals of said parties this tenth
day of May, A. D. 1902.
EDWARD O. WOLCOTT. [SEAL.!
CHARLES S. THOMAS. [SEAL.]
A better because a fairer contract than the last
above given, is a sale by deed, securing the unpaid
instalments by note and mortgage.
The terms of sale are so variant and the tempta-
tions to evade become so great with the fluctuations
in value, that it is always preferable to state the
bargain fully to an attorney jointly agreed on and
CONVEYANCE. 255
whose compensation is not made contingent on the
sale, and to have him place the bargain in such form
as will express, without fiction or verbiage, the real
intention of the parties.
Escrow.
Where a title bond or other executory contract
is delivered it is usually accompanied by a deed exe-
cuted and acknowledged and placed in escrow. An
escrow amounts to a deposit with a third party of
an unrecorded 4eed to be delivered on certain con-
ditions, the title bond or other executory contract
being actually delivered and held in the meantime.
Such escrow is usually in the shape of a deed en-
closed in a sealed envelope and endorsed as follows:
To THOMAS KEELEY, CASHIER,, FIRST NATIONAL BANK
of Denver: You are authorized to deliver the within deed
to Thomas F. Walsh, his agent, or order, upon payment to
me, or deposit to my order, of the sum of ten thousand dol-
lars, on or before the first day of January, A. D. 1903. Mean-
while you will hold the same irrevocably. If payment is
not made on or before said date, you will return the same
to me for cancellation.
January 30, 1902. LUTHER M. GODDARD.
An escrow is often placed on deposit without
any title bond, or the agreement is delivered on con-
dition of not going on record, the vendor objecting
to clouding the title by recording executory agree-
ments which will perhaps never result in conveyance.
Such an escrow or agreement (not recorded) if on
good consideration, is valid in all respects, except
that of giving the purchaser record security. — Wol-
cott v. Johns, 7 Colo. App. 361.
Unrecorded Claim.
An incomplete location may be transferred by
parol and the record completed by the purchaser. —
Doe v. Waterloo Co, 70 Fed. 456.
Acknowledgments to Contracts.
No instrument needs acknowledgment except
such as is intended to be placed of record; if an in-
strument is recorded without acknowledgment, it
256 CONVEYANCE.
may be valid as notice, but the original must be pro-
duced or accounted for when used in evidence — a
certified copy is not evidence. An acknowledgment
is not a part of the instrument, but supplies a mode
of proving its execution without witnesses and for
obtaining a valid copy when lost or mislaid.
Fraudulent Sale.
Where a sale has been induced by fraud the in-
jured party may either rescind or sue for damages.
— Byard v. Holmes, 6 M. R. 598; Smith v. Bolles, 13
M. R. 159.
If he do neither, but continue to exercise acts
of ownership over the property purchased, he may
be estopped even to plead the false representations
to an action on the contract. — Butler u. Rockwell,
14 Colo. 126.
Proof is admissible that defendant had attempted
to salt the same mine on other persons. — Mudsill
Co. v. Watrous, 61 Fed. 163. Sale of worthless stock
may be set aside on like principles as the sale of the
mine.— Ormsby v.. Budd, 33 N. W. 457. False repre-
sentations made by officer are not necessarily charge-
able to the company. — Watson Co. v. James, Id. 622.
A party is bound where he assumes to know and
makes assertions accordingly. — Lehigh Co. v. Barn-
ford, 150 U. 8. 665.
Assertions of value are as a rule only expres-
sions of opinion. — Id. But otherwise as to state-
ments that the lands; sold include a certain ore bed.
—Chatham Co. v. Moffatt, 16 M. R. 103. And opin-
ions and promises (false averments of large means
and extensive operations intended) may amount to
actual fraud.— Rorer Co. v. Trout, 83 Va. 397; 5 Am.
St. R. 285. The same as to promises never intended
to be performed. — Lawrence v. Gayetty, 78 Cal. 126.
A party cannot cover up a fraud by using his
wife's name. — Largey v. Bartlett, 44 Pac. 962.
MINING LEASE. 257
The parties will not be allowed to stand by and
await the result of the adventure before suit. — Blen
v. Bear River Co. 3 M. R. 435.
Delay without sufficient excuse bars the remedy.
— Great West Co. v. Woodmas Co. l.'f Colo. 90.
MINING LEASE.
Written or Verbal.
The lease if for more than one year must be in
writing to avoid the Statute of Frauds. (M. A. 8.
§ 2021). If for a less period it is still often reduced
to writing and the covenants being peculiar cannot
be too particularly expressed. The actual possession
taken by the lessee being notice of his rights, the
lease generally is neither acknowledged or recorded.
Set Work.
In large mines worked on the tribute system,
the lease is usually verbal between the manager and
the miner, and is more in the nature of a contract
of hiring, the foreman retaining general control of
the work.
Dead Work.
The following form is correct to the extent of
the usual covenants, but there are often special
covenants added in regard to "dead work" and other
matters. Dead work is a term of the popular lan-
guage and means sinking shafts and running drifts,
adits or cross-cuts, or it may embrace everything ex-
cept stoping and the timbering incidental to stoping.
Its meaning being so general it should not be used
at all in the instrument and the intention should be
covered by more exact expressions.
It is a common stipulation to require no royalty
for ore extracted in sinking or in driving levels.
Where dead work is to be paid for, care should be
taken to express whether the compensation is to
258 MINING LEASE.
come "out of the first mill returns" or "out of the
royalty." In the latter case the lessor pays for all
of it. In the former he pays a share equivalent to
his proportion of the proceeds. In wording this
covenant a personal liability may be incurred if not
properly expressed.
The Royalty Reserved Necessarily Varies, 20 or 25
per cent, being the usual amount, and 5 and 75 per
cent, being extreme limits.
FORM OF LODE LEASE.
THIS INDENTURE, made this -first day of May, in the
year of our Lord one thousand nine hundred and two, be-
tween Charles J. Grist, of London, England, lessor, and A.
B. Minor, of Lincoln, State of Nebraska, lessee or tenant :
Witnesseth, that the said lessor, for and in consideration
of the royalties, covenants and agreements hereinafter re-
served, and by the said lessee to be paid, kept and performed
hath granted, demised, and let and by these presents doth
grant, demise and let unto the said lessee all the following
described mine and mining property, situate in Four Mile
Mining District, County of Routt, State of Colorado, to wit :
The Owl Bird Lode Mining Claim, Survey Lot No. 172, to-
gether with the appurtenances.
To have and to hold unto the said lessee, for the term
of one year from date hereof, expiring at noon on the 1st
day of May, 1903, unless sooner forfeited or determined
through the violation of any covenant hereinafter against
the said tenant reserved.
And in consideration of such demise, the said lessee
doth covenant and agree with said lessor as follows, to wit :
1. To enter upon said mine, or premises, and work
the same mine fashion, in manner necessary to good and
economical mining, so as to take out the greatest amount of
ore possible, with due regard to the development and pres-
ervation of the same as a workable mine, and to the special
covenants hereinafter reserved.
2. To work and mine said premises as aforesaid stead-
ily and continuously from the date of this lease with at
least two persons employed underground, for at least 20
shifts to the man each calendar month.
3. To well and sufficiently timber said mine at all
points where proper, in accordance with good mining; and
to repair all old timbering wherever it may become neces-
sary.
4. To allow said lessor and his agents from time to
time, to enter upon and into all parts of said mine for pur-
poses of inspection.
MINING LEASE. 25'J
5. To not assign this lease or any interest thereun-
der, and to not sublet the said premises or any part thereof,
without the written assent of said lessor, and to not allow
any person not in privity with the parties hereto, to take
or hold possession of said premises, or any part thereof,
under any pretence whatever.
6. To occupy and hold all cross or parallel lodes,
spurs or mineral deposits of any kind which may be dis-
covered by the said lessee, or any person under him, in
any manner, by working within, or from the demised
ground, as the property of said lessor with privilege to
said lessee of working the same as parcel of said demised
premises.
7. To keep at all times the drifts, shafts, tunnels and
other workings thoroughly drained and clear of loose rock
and rubbish, unless prevented by extraordinary mining cas-
ualty.
8. To do no underhand stoping, and to make all
shafts 7 feet long by 4 feet wide in the clear, and all drifts
6 feet high by 4 feet wide in the clear.
9. To pay to said lessor as royalty 25 per cent of
the net mill returns of all ore to be extracted from said
premises by delivery of such ore with all convenient speed
in lots as mined to some mill or regular ore buyer in Den-
ver or Pueblo, and leaving with such mill or ore buyer the
percentage of mill returns aforesaid for delivery to the
lessor.
10. To deliver to said lessor the said premises with
the appurtenances, and all improvements in good order and
condition, with all drifts, shafts, tunnels and other passages
thoroughly clear of loose rock and rubbish, and drained,
and the mine ready for immediate continued working (ac-
cidents not arising from negligence alone excusing) without
demand or further notice, on the said 1st day of May, A. D.
1903, at noon, or at any time previous, upon demand for for-
feiture.
11. And finally, that upon violation of any covenant
or covenants hereinbefore reserved, the term of this lease
shall, at the option of the said lessor, expire, and the same
and said premises, with the appurtenances, shall become
forfeit to said lessor ; and said lessor or his agent may
thereupon, after demand of possession in writing enter
upon said premises and dispossess all persons occupying the
same, with or without force and with or without process
of law ; or at the option of said lessor the said tenant
and all persons found in occupation may be proceeded against
as guilty of unlawful detainer.
Each and every clause and covenant of this Indenture
shall extend to the heirs, executors, administrators and
lawful assigns of all parties hereto.
L'HO MINING LEASE.
lii witness whereof, the said parties have hereunto
set their hands and seals.
CHARLES J. GRIST. [SEAL.]
A. B. MINOR. [SEAL.]
For acknowledgment, if desired, see page 2Jf2.
Special Covenant Against Miner's Liens.
8 a. To promptly pay for all labor and supplies to
be done for, or furnished to, the said lessee or any person
or persons under or in privity with him upon said prem-
ises, and to deliver to the lessor on or before the fifteenth
day of each calendar month during the term of this lease,
a written statement showing that all labor and supplies
have been paid for, or the amount due and owing for such,
labor and supplies ; and if any lien be filed or if any such
report shows any part of the pay roll, or other mine in-
debtedness unpaid, or if such indebtedness exist, whether
shown by such report or otherwise, the lessor may, at his
election, declare a forfeiture of this lease as hereinafter
provided.
Covenant to Keep Notice Posted.
To at all times keep and maintain posted on said prem-
ises and each claim thereof a notice in substance, as follows :
For form of notice see page 240.
On low grade lodes reservations of a graded
royalty are common. In such case discard covenant
9 above printed and insert:
Covenant for Graded Royalty.
9. To pay to said lessor as royalty 10 per cent, of
the net mill returns of all ore to be extracted from said
premises running 30 ounces of silver or under to the ton ;
20 per cent, on ore running over 30 and not exceeding 50
ounces to the ton ; 30 per cent, on all ore running over 50
ounces — by delivering all the ore in lots as mined to some
mill or to some regular ore buyer in Denver or Pueblo and
leaving with such mill or ore buyer the several percentages
of mill returns as aforesaid for delivery to the lessor.
Estimate of royalty after deducting freight and
mill charges is said to be based on the "net" mill
returns. Where the royalty is much graded and
made dependent on the amount of lead or copper
as well as silver or gold, the more simple form is to
reserve it on the "price per ton" paid by the ore-
buyer, which is 90 to 95 per cent, of the bullion and
base metal value, after deducting treatment charges;
MINING LEASK. 261
but in the "price per ton" the freight has not been
estimated.
Royalty on Price Per Ton.
9. To pay to said lessor as royalty 10 per cent, of
the net mill returns of all ore sold for $10 per ton or less,
net price after deducting freight and mill charges, and 20
per cent, of the like net mill returns of all ore sold for more
than $20 per ton net price as aforesaid by delivering all
the ore in lots as mined to some mill or to some regular
ore buyer in Denver or Pueblo, and leaving with such mill
or ore buyer the several percentages aforesaid for delivery
to the lessor. .
The mill returns on which settlements between
lessor and lessee are made are substantially accord-
ing to the following form:
262
MINING LEASE.
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MINING LEASE. 263
Freight is paid on the gross weight and the ore
paid for on the net weight.
Lease and Option.
An agreement to work a mine is good consid-
eration for a promise to sell it. — Clarno v. Grayson,
46 Pac. ^26. It follows that the acceptance of a
working lease is good consideration for an option
on the same property, and the combination of the
two contracts in the same or by distinct papers is
of common occurrence.
Form of Lease and Option.
Follow the Form of Lease on page 2-58 to and in
eluding its last covenant (No. 11), and proceed as
follows:
And in consideration of the acceptance of the fore-
going lease and the expenditures to be made thereunder and
the well and faithful keeping of the covenants thereof, the
said lessee shall have the right to purchase the said de-
mised premises by payment of the sum of ten thousand dol-
lars on or before the first day of May, A. D. 1903, time be-
ing of the essence of the contract as to such payment.
And upon the tender of such payment the lessor will make,
execute, acknowledge and deliver at his own cost and
charges, good and sufficient deed or deeds of warranty to be
delivered to the lessee or such person or company as he
shall nominate, conveying the said premises clear of incum-
brance.
The forfeiture, surrender or termination of the above
lease for any cause shall render this option void, and the
above mentioned payment may not thereafter be tendered.
Here insert the last two paragraphs of the lease
and follow with seals and signatures, which do not
have to be repeated separately at the end of both
lease and option.
PLACER LEASE.
Follow the above form except in the description
and the numbered covenants which may be as fol-
lows:
Description.
The Yellow Bug Placer Mining Claim, Survey Lot No.
88, and 300 inches of water in the Arapahoe ditch.
264 MINING LEASE.
Covenants.
1. To enter upon said mine or premises and work
the same so as to take out the greatest possible amount
of gold with due regard to the development and preser-
vation of the unwashed ground for future continued work-
ing and to the special covenants hereinafter reserved.
2. To work and wash said premises steadily and con-
tinuously from the date of this lease with a force of at least
two men and with as much of said water as can be obtained
and used. Cessation of work for the total number of three
secular days in any one calendar month shall be consid-
ered a violation of this covenant. But no work shall be
required while the ground is frozen.
3. To take care of the dump and tailings so as to
prevent their accumulation upon any ground of the lessor
remaining unworked.
4 and 5. Same as lode lease.
6. To clean up the gold not oftener than once every
two weeks and at least as often as once in four weeks and
to give 48 hours' notice to lessor of the date intended for
clean up, and at each clean up lessor shall have the right
to be personally present or to send some one person to rep-
resent him and be present and assist at such clean up and
at the retorting of the amalgam and the weighing of the
retort, and to make no clean up, partial or general, without
giving such notice.
7. To pay as royalty to the lessor 25 per cent, of
the gross proceeds of working under this lease by delivery
immediately after each clean up* of the whole of the retort
to the lessor or to his agent present on the ground, and the
said lessor covenants forthwith to cause the same to be
shipped to the mint at Denver or to some regular gold
buyer at Fairplay or Denver and to return to lessee 75 per
cent, of the net proceeds.
8. To deliver to said lessor the said premises with
the appurtenances in good order and condition and the
ground and water ready for immediate continued use and
working without demand or notice on said first day of May,
A. D. 1903, or at any time previous upon demand for for-
feiture.
Second Form of Eoyalty Covenant.
After the * proceed as follows:
To the lessor or to his agent present on the ground,
of one-quarter by weight of the amalgam or of the retort
as he may elect.
MINING LEASK. 265
Third Form of Royalty Covenant.
After the * proceed as follows:
Of 25 per cent, of the net mint returns or proceeds of
sale to some regular gold buyer at Fairplay or Denver for
use of the lessor.
Covenant to Work.
Where royalty is reserved in the usual form
there is an implied covenant to keep at work.—
Rorer Co. v. Trout, 5 Am. St. R. 285; Aye v. Phila-
delphia Co. 44 Atl. 5~>5. Otherwise where there is a
fixed rent, or a rent based on an assumed minimum
production. — Mclntyre v. Mclntyre Co. 11 N. E. 645.
An agreement to work is not necessarily an
agreement to work continuously. — Caley v. Portland,
~>6 Pac. 350. Failure to start work is same as quit-
ting.— Woodward v. Mitchell, 39 N. E. 439. A parol
agreement as to what shall be considered sufficient
work is binding on lessor and his grantees. — Hartley
v. Phillips, 36 Atl. 217.
To recover substantial damages against a lessee
failing to work, the plaintiff must show that the ore
could have been mined to a profit. — Colo. F. Co. v.
Pry or, 51 Pac. 51.
Right to Quit.
Under the covenant to work in the above forms,
the lessee has no right to quit at discretion. If
such right is to be given, as in most instances of
common equity it should be given, insert after the
second covenant:
"The said lessee reserving the right to quit and aban-
don after at least two months' continuous work under this
covenant."
or as the case may be. When the party quitting is
to give notice it is not always material that it be
given in the manner stipulated. — McCahan v. Whar-
ton, 16 M. R. 239. The lessee may quit at will under
a lease containing no covenant to work. — Glasooiv
v. Chartiers Co. 25 Atl. 232: 17 M. R. —.
266 MINING LEASE.
Co-Tenant Owners — Partnership Lessees.
The legal relation of co-lessees is that of part-
ners.— Meagher v. Reed, 14 Colo. 350. One of such
co-tenants or co-partners cannot give a lease of the
whole mine technically binding on all the co-owners,
but where they cannot agree as to mode of working,
a majority interest must control. — Dougherty v.
Creary, 1 M. R. 36. In Paul v. Cragnas, 59 Pac. 857,
the lessee of a minority interest was allowed heavy
damages against the majority owner disputing his
right to enter and mine. We cannot gather from the
opinion upon what theory this anomalous case was
decided. BELKNAP, J., dissented.
Assessments — Forfeiture to Co-Partner.
An assessment is defined in Shaw v. Homer, 7
Colo. App. 83, as "an apportionment among the par-
ties interested, of an amount of money necessary and
not on hand for development purposes." It must be
levied by one having authority, each partner must
have notice of it and a forfeiture does not ensue
for failure to pay unless there is some contract to
that effect. Such a contract was enforced in Joseph
-v. Davenport, 89 N. W. 1081.
Fixtures.
Unless otherwise covenanted the fixtures belong
to the lessee and are removable. — Conrad v. Saginaw
Co. 20 N. W. 39; 52 Am. R. 817. And this applies to
a forfeited lease.— Mickle v. Douglass, 39 N. W. 198.
A mortgage on fixtures was held good after for-
feiture in Alberson v. Elk Creek Co. 65 Pac. 979.
Letting by Agent.
The agent in charge has, under his general and
implied powers, the right to let short leases of the
ground, in blocks or parcels. — Bicknell v. Austin Co.
62 Fed. 432.
And though unauthorized to lease, if the com-
pany stand by and allow the lessee to spend money,
they will be bound. — Hoosac Co. v. Donat, 10 Colo.
529.
MINING LEASE:. 267
Assignment,
A lessee is not in general released from personal
liability by assigning his lease, but remains in the
nature of a surety to his landlord. — Pittsburg Co. v.
G-reenlee, 80 Atl. 489; Wilson v. Gerhardt, 9 Colo. 585.
A Non-Assessable Interest in a lease is an interest
chargeable with its full share of all cost of mining,
as well as of freight and treatment as far as the ore
proceeds will pay such cost, but not chargeable in
case of working to a loss. The decision in Maloney
v. Love, 11 Colo. App. 288, holding it entitled to a
full share of the gross proceeds is wholly against
the meaning of the term as understood by miners.
In Taylor v. Thomas (Colo.), 71 Pac. 382, a non-
assessable interest in a lease was charged with its full
proportion of expenses to the extent of the ore pro-
ceeds.
Forfeiture.
Unless the lease provide for forfeiture none oc-
curs for non-payment of rent or breach of covenant.
— Plummer v. Hillside Co. 104 Fed. 208; Wake field
v. Sunday Lake Co. 49 N. W. 135. A forfeiture en-'
forced by collusion with employes of lessee is not
lawful. — 49 N. W. 135. Forfeiture cannot be en-
forced by a party who is himself in default. — Ingram
v. Golden Co. 65 Pac. 549.
Draining and pumping is counted as labor under
a covenant to keep at work. — Miller v. Chester Co. 18
Atl. 565.
Where parties have acted loosely in complying
with the terms of lease the lessor cannot abruptly be-
come strict and declare a forfeiture. — Westmoreland
Co. v. DeWitt, 18 Atl. 724; Hukill v. Myers, 15 8. E.
151.
Miscellaneous Decisions.
An advertisement, bid and acceptance make a
complete agreement for a lease. — Cochrane v. Justice
Co. 16 Colo. 415. And "the lessor cannot after such
proceedings insist on new and arbitrary terms.— Id.
268 LICENSE.
Under a mining, lease covenanting to pay a cer-
tain royalty and that it shall amount to at least a
given sum, lessees are not liable if after full testing
no merchantable ore is found. — Gibben v. Atkinson,
15 M. R. 428.
Whether a lease has been extended is a ques-
tion of fact which the Court cannot take away from
the jury. — Riddle v. Mellon, 23 Atl. 241.
A tenant cannot take leases of two hostile titles
and then compel his lessors to interplead. — Standley
v. Roberts, 59 Fed. 83(1
A lessee attempting to relocate the ground for-
feits all rights under his lease. — Silver City Co. v.
Lowry, 57 Pac. 11; Affd. 179 U. 8. 196.
A lease of a mining shaft means not only the
shaft but the ground- accessible through such shaft.
—Wesling v. Kroll, J,l N. W. 944.
The receipt of royalty admits the validity of the
lease. — Bicknell v. Austin Co. 62 Fed. 432; Burk-
hard v. Mitchell, 16 Colo. 376.
Waiver of conditions may be shown by parol. —
Equator Co. v. Guanella, IS Colo. 548; Bullis v.
Noyes, 12 S. W. 397. And release of Royalty. — Craw-
ford v. Bellevue Co. 38 Atl. 595.
LICENSE.
Instead of a lease a license may be granted.
The material distinction between a lease and a li-
cense are that
1. A license is not exclusive.
2. It invests the licensee with no property in
the mineral until it is severed from the ground.
3. It may be revoked at any time.
4. It is not transferrable.
The above stated differences show that a license
practically amounts to a mere privilege to work at
the owner's will. It is a permission sufficient to de-
LICENSE. 269
feat the charge of trespass but is not that property
in the soil such as parties contracting on equal
terms for permanent working naturally bargain for.
On the other hand, it is usually granted without
any, or for a nominal consideration.
It has been held in California that a lease which
did not bind the lessee to work was a mere license. —
Wheeler v. West, 11 Pac. 871; 20 Id. 45. The hold-
ing is an extreme one and ought not to become in
conscience a precedent. In every lease, verbal or
written, reserving royalty, there is an implied cove-
nant to work (See p. 265) and the express obligation
to work is not one of the distinctions between lease
and license. The exclusive right to mine implies
a lease and not a license. — Cons. Coal Co. v. Peers,
37 N. E. 937; Stinson v. Hardy, 41 Pac. 116.
The general nature of a license as distinguished
from a lease or other like grant is stated in Massot
v. Moses, 8 M. R. 607; Doe v. Wood, 9 M. R. 182.
1. Not Exclusive.
The owner may work himself, or allow others
to work upon the same ground. — Johnstown Co. v.
Cambria Co. 9 M. R. 226; Woodside v. Ciceroni, 93
Fed. 1.
2. Passes No Property or Vested Estate.
A license is authority for the temporary occu-
pation of land or to enter upon and do particular
acts in and about it. It creates no estate. — Fuhr v.
Dean, (J M. R. 216. After it is broken by licensee
the rock in a quarry belongs to him. — McKee v.
Brooks, 20 Mo. 526.
3. Revocability.
Although revocable the owner cannot arbitrar-
ily oust the licensee without compensation for ex-
penditures made. — Bush v. Sullivan, 9 M. R. 214.
After a proper revocation the licensee has no title in
what he continues to break and sever. — Williams v.
Morrison, 32 Fed. 177. A license once given con-
tinues till revoked. — Keeler v. Green, 12 M. R. 465.
270 PROSPECTING CONTRACT.
An executed license (to build a ditch) amounts to a
grant. — De Graffenried v. Savage, 47 Pac. 902.
4. Not Assignable.
Being only a personal privilege any transfer
operates as a forfeiture. — Dark v. Johnston, 9 M. R.
283. But if the license imply a grant of the ore it
may be assigned. — Muskett v. Hill, 5 Bing. N. C. 69^.
By One Co-Tenant.
As to whether at all or to what extent the license
of one or more of several co-tenants is valid, see Job
v. Potion, 14 M. R. 329; Tipping v. Robbins, 37 N. W.
427; Omaha Co. v. Tabor, 16 M. R. 184.
PROSPECTING CONTRACT.
Much litigation has grown out of contracts of
this kind owing to the loose manner in which they
are generally undertaken and the strong induce-
ments to shirk their obligations when a rich discov-
ery has been made. — Hurley v. Ennis, 12 M. R. 360;
Johnstone v. Robinson, Id. 396.
The following form covers the legal points
necessary to be guarded in this class of contract:
GRUB STAKE PROSPECTING CONTRACT.
In consideration of provisions advanced to me by
Charles C. Hueger, and of his agreement to supply me from
time to time, as I may reasonably demand them, with tools,
grub and mining outfit generally, and the sum of fifty dol-
lars in hand paid, I agree to prospect for lodes and deposits
in Silver Bow County, Montana, nnd to locate all discov-
eries which I may consider worth the expenditure, and re-
cord the same in the joint names of said outfitter and my-
self, and in our names only, as equal owners.
My time and labor shall stand against his money, pro-
visions, etc., as aforesaid. All expenses of survey and rec-
ord shall be paid by the outfitter, and I agree to make no
debts on account of this agreement. Work done on claims
PROSPECTING CONTRACT. 271
after record and before the expiration of this contract
shall be considered as done under this contract, and no
charge for labor or time shall be made for the same. This
contract shall stand good during the whole of the summer
and fall of 1903 (expiring Dec. 1st) and during all of that
period I will not work or prospect on my own account, or
for any parties other than said outfitter.
Dated April 1, 1903. ' CHARLES BARRON.
I agree to the terms above stated.
CHARLES C. RUEGER.
Under the following form the prospector is al-
lowed wages and takes a smaller interest in lodes
found :
AGREEMENT of date March 7, A. D. 1903, between Au-
gustus R. Spechtj Charles J. Allen, and Arthur D. Bullis,
outfitters, and John Owent prospector.
WITNESSETH, That said outfitters agree to pay to said
prospector on demand seventy-five dollars ($75) for the
purchase of tools and packing outfit, and twenty-five dol-
lars ($25) for railroad fare and expenses from Idaho
Springs to Creede, and to allow said prospector wages at
three dollars per day for each secular day after arrival
at that place, until November 1, 1903, unless this contract is
rescinded by notice before that date, and to pay all expenses
of surveys and records to be made under this contract, and
for powder, fuse and other mining materials if required
by said prospector, to the extent of fifty dollars.
And in consideration of the premises, said prospector
agrees industriously and to the best of his skill to prospect
for lodes and deposits in the neighborhood of Creede camp,
within the limits of Hinsdale, Rio Grande and Saguache
counties, and to locate and record all discoveries which in
his judgment are worth holding, in the joint names of all
parties hereto — one-fourth interest to each.
And that he will use no company name and make no
debts against his associates.
And that he will at least once each month report
progress and all discoveries made, by letter to said A. D.
Bullis.
All work done in development after record shall be
considered as work done under this agreement.
And said prospector agrees further not to prospect
on his own account nor for any other persons during the life-
time of this contract and if at any time within one year
thereafter he shall become interested by location or pur-
chase in any claims on which he may have prospected un-
der this contract, he will allow his associates to take an
equal interest with himself on the same terms and at the
same cost at which he has acquired such interest.
272 PROSPECTING CONTRACT.
On final settlement full wages are to be allowed as
above agreed, but said prospector shall be charged with his
full fourth of any expenses over and above the sums herein
expressed, and shall account and pay for all tools and sup-
plies on hand when contract expires, if terminated on his
notice ; but shall keep such tools and supplies if contract
determined at outfitters' election, or by expiration of the
full term limited, or by failure to remit proper charges
monthly on demand. And the said prospector shall have
no right to quit on notice until he shall have prospected
two full months under this agreement.
Witness the hands and seals of said parties.
AUG. R. SPECHT. [SEAL.]
CHARLES J. ALLEN. [SEAL.]
A. D. BULLIS. [SEAL.]
JOHN OWEN. [SEAL.]
The contract does not require a seal, and is not
within the Statute of Frauds, and therefore may be
verbal. — Hurley v. Ennis, supra; Moritz v. Lavelle,
16 M. R. 236; Meylette v. Brennan, 38 Pac. 75; Ray-
mond v. Johnson, 49 Pac. J{92. There is an isolated
contrary ruling in Nevada. — Craw v. Wilson, 40 Pac.
1076.
The association is practically a partnership. —
Lawrence v. Robinson, 12 M. R. 387; Abbott v. Smith,
3 Colo. App. 265.
If the outfitter neglect to furnish the agreed and
necessary supplies, such failure may be treated as a
condition precedent, and the prospector is at liberty
to search for mineral upon his own account. — Mur-
ley v. Ennis, supra.
Where a prospector made locations which he
concealed from his outfitters, and afterwards sold,
he was compelled to account for the outfitters' share
of the price. — Jennings v. Richard, 15 M. R. 624-
But he was not held in this instance to account
to outfitter for any share in a lode, the float of which
he discovered while prospecting, but did not find
the lode till afterward. Of course, the rule in such
cases must vary according to the facts and the good
faith in the premises.
Where an association for prospecting purposes
is abandoned, the several late partners may perfect
locations on discoveries made on their several ac-
WORKING CONTRACT. 273
count. — Page v. Summers, Id M. R. 617. If one of
the associates quit before mineral is struck he can-
not claim an interest in the perfected location. —
McLaughlin v. Thompson, 29 Pac. 816.
Permission by the owner to prospect his ground
must be exercised within a reasonable time. — C&
lioon v. Bay and, 1 N. Y. Sup. 814. But in Woodside
v. Ciceroni, 93 Fed. 1, the license was construed as
perpetual. On contract to prospect and test land for
mineral value, for what amounts to sufficient search,
see "Wells v. Leelc, 25 Atl. 101; Jamestoivn Co. v. Eg-
bert, Id. 1~>1 ; Petroleum Co. v. Coal Co. IS 8. W. 6.5.
WORKING CONTRACTS.
A contract to sink a shaft does not necessarily
imply that the vein will be followed. — Buckeye Co.
v. Carlson, 66 Pac. 168. The Contractor is not bound
to timber where the Contract is silent on that point.
—No. 5 M. Co. v. Bruce, 3 M. R. 146,
On a contract to sink on the vein where the vein
disappears the contractor is not bound to go down
through the country. — Woodworth v. McLean, US.
W. 43.
EXAMINATION OF TITLE.
The written title to a mining claim begins with
the location certificate, after which the conveyances
and incumbrances should appear upon the abstract
as in other classes of real estate.
Inspection and Survey.
In addition to the abstract of title a survey and
local inspection are indispensable to security, espe-
cially when the claim is not patented.
274 EXAMINATION OP TITLE.
This inspection and survey should result in as-
certaining the depth of discovery shaft, and whether
it shows a well denned crevice; whether the loca-
tion notice was duly posted and what it contains
(p. 38) ; whether the stakes were properly set;
whether the claim (as far as such fact can be fairly
ascertained) is laid so as to cover the apex or gen-
eral course of the lode, and more especially what
shafts, tunnels, prospect holes, stakes, notices and
improvements, indicate the presence of hostile
claims; and if such intervening or overlapping hos-.
tile claims are found, their seniority or juniority
should be established.
The abstract (at least until patent) may show
a clear chain of title, and may be based on a record
senior to other records on the same vein> and still
the title may be absolutely worthless. — Patterson v.
Hitchcock, 5 M. R. 542.
An adverse senior discovery may exist within a
few feet of the discovery of the claim under examina-
tion. Every hole or stake in proximity to the claim
should be examined, its history traced, and the pos-
sibility of danger from that source guarded against.
Whether the annual labor has been done should
also be ascertained.
Such inspection having been made, the course
of examination will be as follows, the points peculiar
to the title, as a mining title, being noted as they
occur:
1. THE ABSTRACT.
The abstract should be certified by the recorder
or by some reputable abstract firm, to contain all
deeds and instruments filed or recorded, in the of-
fice of the recorder, conveying, encumbering or in
any manner affecting title to the property in ques-
tion.
The abstract, however, amounts to nothing more
than a guide or memorandum to the attorney in his
examination. Each deed and other instrument
EXAMINATION OF TITLE. 275
should be inspected at length, either by the original,
by the record or by a certified copy.
The abstract should be furnished by the vendor
at his own charges.
2. — LOCATION CERTIFICATE.
The material points to be observed in the loca-
tion certificate are that it contains:
1. The name of the lode.
2. The names of the locators.
3. The date of location.
4. A proper description. See page 72.
5. The location certificate of a placer should
contain the name of the claim and of the locator,
date of location, description, and there should be one
locator for every 20 acres. See page 198.
3. — CONVEYANCES.
A mine is conveyed by deed or encumbered by
mortgage the same as other real estate.
The description should contain:
1. The name of the lode.
2. If patented, the number of survey lot.
3. Mining district, County and State.
4. Usually in proper conveyancing, the number
of feet in length and width are inserted, and some-
times (especially if the conveyance be of part of a
claim) their situation relative to center of discovery
shaft.
The essential points of such description are the
name of the lode, district, County and State.
Placer claims are usually described by their
names, or if patented by the names and number of
the survey lot. In early locations they were usually
numbered with reference to the local gulch.
Bach deed or other instrument must be examined
to ascertain:
That it has been signed by the proper parties.
That it is under seal.
That it sets forth a consideration.
276 EXAMINATION OF TITLE.
That it contains a sufficient description of the
premises.
That it contains sufficient words of conveyance.
That no lien for purchase money is therein re-
served.
That there are no words of condition, exception
or reservation by which Jess than a fee simple estate
may be limited, or by which a supposed conveyance
may be construed as a mortgage.
That each letter of attorney grants sufficient
power to sell and convey.
That each deed under power of attorney is exe-
cuted in conformity with such power, and that the
name of the principal, at least, appears in the body
of the deed, and that it is signed "A. B. by C. D., his
attorney in fact," or words equivalent thereto.
That each title bond or agreement to convey has
been released, or has expired by limitation without
performance, unless a conveyance has been made in
conformity with such bond or agreement.
That proper stamps were affixed during the pe-
riod when stamps were required — July 1, 1898, to July
1, 1902.
That every mortgage, trust deed, attachment,
miner's lien, certificate of levy, tax sale, judicial
sale, judgment or transcript, has been either properly
proceeded upon if title is claimed under it; or, on
the other hand, satisfied of record if it is found in
opposition to a clear title.
That especially in sales under a trust deed, due
publication has been made and all the terms of such
trust deed complied with as to time, place and terms
of sale, etc., all of which should appear recited in
the deed made by the trustee to the purchaser.
That every letter of attorney, deed, mortgage,
etc., has been duly acknowledged before some proper
officer. See page 27/S.
Deeds by Married Women.
The separate acknowledgment by a married
woman has not been required in Colorado since
EXAMINATION OF TITLE. 277
1874. Where still required in any State, such ac-v
knowledgment is generally essential to pass the
wife's title, and is not merely a mode of proof of
the delivery of the deed which is the usual function
of an acknowledgment. See page 2.'iU.
After Acquired Title.
A warranty deed conveys to the grantee any
after acquired title of his grantor, and even a quit-
claim made pending application, may carry the pat-
ented title to the grantee. — Crane v. Salmon, 41 Cal.
63; Bradbury v. Davis, 3 M. R. 398.
4. — PATENTS.
Where the claim is patented the Patent should
appear in the Abstract although failure to record
the patent is not the same as a like failure in cast
of a deed, a certified copy of the patent being always
procurable from the General Land Office. The pat-
ent carries the title back to the entry at least. —
Benson Co. v. Alta Co. 145 U. S. 428.
The form of patent is quite different from that
of a patent for agricultural lands, and contains
specific exceptions as to easements, etc., and in the
form used before 1888 and in instances since that
date a plat of the survey; and excepts the surface
ground of any previous entry crossing the line of
the lot conveyed.
Where such exclusions occur the patentee has
no claim to the vein in such excluded area. And in
instances the dates of application and of entry or
even of the discovery may continue to be material
where the question of relation arises. See p. LW.
Where a patent has been issued there is no
necessity for a strict examination of the location
certificate or of the various acts of location. It cures
all defects incident to the location and in most in-
stances any formal break in the chain of title prior
to the application. And especially it cuts out prior
hostile titles which have failed to adverse or to
successfully maintain their adverse.
278 EXAMINATION OF TITLE.
But it does not divest liens, nor the title of
a co-tenant dropped in the patent application (see
p. 117), or at least it may be possible for a party
having a claim to an interest in the possessory title
to prove an equity such as would make the paten-
tee, trustee of the title for his use. Nor does it
dispense with the importance of a surface examina-
tion to see that the corners agree with the plat
and that the survey lot substantially encloses the
vein.
5. PLAT OF PATENT.
In the older form of patents was inserted a
diagram in which the ground conveyed was colored.
But in cases where the patent contains no such
plat a certified copy should be obtained from the
Surveyor General's office, and a careful comparison
of the plat should be made with the metes and
bounds contained in the description and the exclu-
sions, if any, recited in the patent.
6. — LIENS AND JUDICIAL PROCEEDINGS.
A certificate should then be had from the Clerk
of the District Court of the proper county, certify-
ing that there are no judgments, transcripts, attach-
ments or other liens of record in such court against
the property, or appearing against the names of
any of the present or former owners during such
time as the abstract may show it was liable to lien
through each particular owner. And that there are
no suits pending affecting such property or the title
thereto, either in such District Court, or in Su-
preme Court or Court of Appeals, on error or ap-
peal. If there are suits or liens he will so certify,
with reference to term and docket, whereupon they
should be examined by inspection of the original
records, with the same particularity as the deeds
in the abstract, so that it may be seen to what
extent they encumber the premises or threaten the
quiet enjoyment thereof; and if such suits or liens
have been satisfied or settled, it should be made
plainly so to appear upon the records.
EXAMINATION OF TITLE. 279
FORM OF CLERK'S CERTIFICATE.
STATE OF COLORADO, County of Teller: ss.
I, Alexander W. Grant,, Clerk of the District Court in
and for said County, do hereby certify that there are no
judgments, attachments, transcripts or other liens, appear-
ing of record against (here insert name of each party who
has owned an interest within six years) or any of them in
said court within six years last past. And that there are
no suits pending in safd court claiming or affecting title to
the Edelmira lode mining claim, in said County.
Witness my hand and seal of said Court, this
12th day of April, A. D. 1903.
[SEAL.] ALEXANDER W. GRANT, Clerk.
A like certificate should be had from any other
local court of record, from the appellate and the
federal courts. A patent does not divest liens ac-
crued against the possessory title. They are espe-
cially saved by the terms of A. C. § 2332.
The lien of a judgment in Colorado is confined
to those cases where a transcript is filed in the
Recorder's office and expires six years after date of
its original entry.— Code, § 232; 3 M. A. S. § 2529.
And in any State where a similar provision exists
the clerk's certificate is not usually called for.
There 'always, however, exists a possibility of a
lien not appearing on the abstract (Laughlin v.
Hawley, 9 Colo. 170) but which should disclose itself
on the clerk's certificate. There may also exist an
unrecorded miner's lien. (See p. 236) or a lien in
favor of the State on an audited account (If. A. S.
§ 1839), or for fine and costs in a criminal case, or
against the surety on a criminal bond. — M. A. S.
§§ 1472, 1473.
If from the abstract or any of the above certifi-
cates there appears to have been a judicial sale, pro-
bate sale, tax or other official sale, the whole pro-
ceedings from the summons, petition, assessment or
other starting point, must be examined as to their
validity at all stages, up to their consummation by
sheriff's deed or otherwise.
280 EXAMINATION OP TITLE.
7. — PARTIES IN POSSESSION.
If parties are in actual possession, claiming ad-
versely to the grantor, or claiming under him as
lessees, their possession is an assertion of their
claim, whatever it may be, of which the purchaser
must take notice at his peril. — Coffee v. Emigh, 15
Colo. 184.
8. CONCLUSION. DUTY OF COUNSEL.
If from the abstract, or from any of the cer-
tificates, or from inspection of any deed, instrument
or record in the chain of title; or as the result of
his client's inspection and survey of the premises, or
from any other source, the attorney is informed of
any adverse title, or of any outstanding trust or ad-
verse interest, or of any missing conveyance in the
chain of title, or of any serious defect in the body
or acknowledgment of any instrument of such a
nature as to invalidate the title — the true condition
of such title should then, with due secrecy, be ex-
pressed to the client. And when the attorney has
satisfied his own mind upon all such questions of
law as may have arisen during the course of his
examination, the client has a right to fcbe advised
of all points which remain in doubt, and of any
contingencies which may threaten the quiet enjoy-
ment, or would obstruct a sale of the premises; and
of all steps which if presently taken may avoid such
conditions and perfect the title, so that the true
value of the title in law shall be represented to the
client, that is, the intending purchaser. For in all
cases of examination of title, the attorney should be
selected, or at least assented to, by the purchaser,
if it be a sale; by the lender of money, if it be a mort-
gage; because from the necessity of the case, he acts
in the interest of the purchaser and of the lender,
and not in that of the grantor or of the mortgagor;
the charge for his examination should be made
against the same side; the charge for the convey-
ance, on the other hand, is by custom made against
the vendor.
ALIENS. 281
ALIENS,
Ownership of Patented Title.
The right of aliens, resident or non-resident, to
acquire title to patented property, depends upon the
local legislation which in general fully provides for
such ownership. The Colorado Statute (M. A. S. ch.
3, and art. 2, sec. 27, of the Constitution) allows
ownership by either resident or non-resident aliens.
A patent to the use of an alien may not be at-
tacked except by direct governmental inquisition. —
Justice Co. v. Lee, 21 Colo. 260.
Ownership of Possessory Title.
The Mining Acts throw open the public domain
to citizens only and to those who have declared
their intentions to become citizens. — A. C. § 2319.
It would seem from their language that an
alien could not locate a claim and so it has been re-
peatedly held. And if he could not locate, his hold-
ing by deed and perhaps by devise or descent might
be questioned.
But the matter in its practical importance is
controlled by the rule laid down in late opinions of
the Federal Supreme Court, Manuel v. Wulff. 152 U.
S. 505; McKinley Co. v. Alaska Co. 183 U. S. 563, that
the question of ownership by an alien is a matter
between himself and the government and that as
long as the Government does not make inquisition
to deprive him of his title, or become a party to
proceedings to perfect the title, his title even when
he claims under his own location is good against
all the world.
Adverse Claim Cases.
As the Government rarely initiates such pro-
ceedings the alien in contests between citizens has
282 ALIENS.
therefore the same standing as the citizen (Tornan-
ses v. Melsing, 109 Fed. 710) save only on application
for patent and in suits supporting adverse claims, in
which proceedings the Government is an interested
party and the citizenship of the parties becomes ma-
terial.
If the parties to such suit are citizens the fact
that the locator was an alien or that one of several
locators was an alien or that intermediate holders
were aliens becomes wholly immaterial. — North N.
Co. v. Orient Co. 9 M. R. 530; Providence Co. v.
Burke, 57 Pac. 641; Gorman Co. v. Alexander, 51 N.-
W. 346; Billings v. Aspen Co. 52 Fed. 250.
The Citizenship of the Original Locator is ma-
terial only where he continues to be the claimant to
the time of the institution of the adverse suit.
Declaration of Intention.
One who has declared his intention to become
a citizen of the United States may locate, enter and
patent a claim the same as a citizen. No fixed period
of previous residence is required before making such
declaration.
The Act of Naturalization Is Retroactive, so that
if an alien has located a claim and afterwards
become or declared his intention to become
naturalized, his location is good from its original
date. — Osterman v. Baldwin, 6 Wall. 122; 29 L. D.
164; Lone Jack Co. v. Megginson, 82 Fed. 89.
In the Manuel case a citizen had located and
sold to an alien. The alien had applied for patent
and was adversed. Pending trial he became nat-
uralized, he being a minor emigrant entitled to take
out papers without previous declaration of inten-
tion, and the Court held that the effect of naturaliza-
tion was retroactive, made his claim valid and de-
feated the adverse.
Children of Aliens.
There is a common impression that the natural-
ization of the father operates to make citizens of all
ALIENS. 283
his children who came to the United States under
twenty-one years of age; but this is the case only
as to such children who were under that age at the
date of the father's naturalization papers. — R. 8.
§ 2172.
An Alien May Take Title by Descent and hold
the claim against all the world except the United
States.— Billings v. Aspen Co. 51 Fed. 338; 52
Fed. 250; Lohmann v. Helmer, 104 Fed. 178.
Pleading and Proof of Citizenship.
Except in adverse claim cases it need be neither
alleged or proved. — Harris v. Kellogg, 49 Pac. 708;
Buckley v. Fox, 67 Pac. 659. It may be proved when
essential though not averred. — Altoona Co. v. Inte-
gral Co. 4^ Pac. 1047. Where no issue is made on it,
it cannot be controverted. — Jackson v. Dines, 13
Colo. 90; Sherlock v. Leighton, 63 Pac. 934.
Indirect proof by circumstances has been al-
lowed— Strickley v. Hill, 62 Pac. 893, and in Jantzen
v. Arizona Co. 20 Pac. "93, the broad view was ex-
pressed, and as we have always believed correctly
expressed, that (in judicial as distinguished from
departmental proceedings) a presumption exists in
favor of the citizenship of a resident locator.
The point of alienage must be raised on the trial
below.— O'Reilly v. Campbell, 116 U. 8. 420.
Where a party is native born his own statement
proves his citizenship. Where naturalization or
declaration of intention is in issue the proper proof
is the producton of a certified copy of the record,
but there are instances where this strictness is not
insisted on. — Wood v. Aspen Co. 36 Fed. 25; Provi-
dence Co. v. Burke, 57 Pac. 641.
In the Land Office upon application for patent
and upon adverse claim the proof is by affidavit and
like proof is held good in the suit supporting the
adverse. — Hammer v. Garfteld Co. 16 M. R. 125;
O'Reilly v. Campbell, 116 U. S. 420.
2X4 MEXICAN GRANT.
Citizenship of the stockholders of an American
corporation need not be proved and issue cannot "be
taken on this point. — Doe v. Waterloo Co. 70 Fed. 436.
The Federal Alien Act of March 3, 1887, is in
force in the Territories only. That Act (Sup.
556) forbids aliens who have not declared their
intentions, to hold any real estate patented or
possessory, except by inheritance or as creditors
buying to protect debts. It applied also to cor-
porations where over 20 per cent, of their stock
was held by aliens; but this restriction was removed
by the Act of March 2, 1897, 29 St. L. 618, so that now.
a corporation not alien may purchase from the Gov-
ernment irrespective of the citizenship of its stock-
holders.— 28 L. D. 118. By the same amendment it
allows aliens to acquire and hold by purchase, pos-
sessory as well as patented mining claims. Its lan-
guage is so vague that it cannot be told without ju-
dicial construction whether it would allow of the orig-
inal location of a mining claim by. an alien. Except
as affected by the Alien Act or by local statute,
Chinese or other aliens can work under lease from a
citizen.— Ah Kle v. McLean, 32 Pac. 200.
MEXICAN GRANT.
The three cessions of Mexican territory to the
United States were by the treaty of Guadaloupe
Hidalgo, Feb. 2, 1848, the Gadsden purchase in 1853
and the grant by the State of Texas in 1850, of all
its claims to territory outside of its present boun-
daries. It had been the policy of the Spanish and
Mexican governments to allow the governors of the
outlying provinces to pass title to large tracts for
colonization purposes but limited to eleven square
leagues. Such private cessions of land are recognized
by all the treaties as well as by the modern law of
^conquest, and they have been variously confirmed
MEXICAN GRANT. 2S5
by special Acts, by patents, or by the adjudication of
the Court of Land Claims. Many of the so-called
grants were of an inchoate character — what we would
call licenses or equities not ripened into grants
proper. But whatever their status the U. S. is under-
stood to be bound as fully as was the original gov-
ernment.
In Moore v. Smaw, 12 M. R. 418, where the sub-
ject of mineral rights in grants was fully discussed,
it was held that no interest in minerals passed by
the grant of the Mexican government without express
words designating them and that at the date of the
cession of California to the United States they were
the property of the Mexican government and passed
by the cession to the United States; but that a pat-
ent from the United States, in confirmation of such
grant, making no reservation of the minerals, in-
vested the patentee with the ownership of the min-
erals.
In Fremont v. U. S. 17 How. 060, it was was held
that the discovery of gold or silver did not, under the
mining laws of Mexico, destroy the title of the in-
dividual holding the grant to the surface, without
passing upon the rights of the government or of the
discoverer, in such minerals.
The Moore case followed without qualification in
Fremont v. Seals, 11 M. R. 632, and Ah He v. Crip-
pen, JO M. R. 367, remained for many years unques-
tioned, but in U. 8. v. San Pedro Co. 17 Pac. 337, the
Supreme Court of New Mexico held that a confirma-
tion of the grant by patent or statute did not pass
the minerals. The facts in this case for the mineral
claimant were very strong, as the mines on that
grant had been, prior to the cession, of known value
and denounceable, if not actually denounced under
Mexican law.
A Mexican grant seems to be inadmissible n.s
proof of title till confirmed by Act of Congress. —
Astiazaran v. Santa Rita Co. 20 Pac. 189; 148 U. S.
80. But confirmation may be complete without pat-
ent.— Shaw v. Kellogg, 170 U. S. 312.
286 CORPORATIONS.
A raining location may be made on an uncon-
firmed Mexican grant. Such land is not reserved
against entry. — Lockhart v. Wills, 54 Pac. 336; Aff'd
181 U. 8. 516.
In Gildersleeve v. New Mexico Co. a confirmed
Mexican grant was upheld on the ground of laches
of the complainant. — 161 U. 8. 573.
The Act of 1891 creating the Court of Land
Claims (20 8tat. L. 860), contains a special reserva-
tion of mineral titles which cannot be safely ex-
pressed without quoting its exact language, to wit:
"No allowance or confirmation of any claim shall
confer any right or title to any gold, silver, or quicksilver
mines or minerals of the same, unless the grant claimed
effected the donation or sale of such mines or minerals to
the grantee, or unless such grantee has become otherwise
entitled thereto in law or in equity ; but all such mines
and minerals shall remain the property of the United States,
with the right of working the same, which fact shall be
stated in all patents issued under this act. But no such
mine shall be worked on any property confirmed under this
act without the consent of the owner of such property until
specially authorized thereto by an act of Congress hereafter
passed."
MINING CORPOBATIONS, DOMESTIC.
A Corporation is an "association of persons"
within the meaning of the U. S. Mining Acts. — U. 8.
v. Trinidad Co. 137 U. 8. 160.
* Any three or more persons are authorized to
file their certificate of incorporation under the Colo-
rado Incorporation Act (M. A. 8. § 472-635), for pur-
*These details vary in the several States and Terri-
tories, but each allows of incorporation upon practically the
same terms and upon compliance with substantially the
same forms as in Colorado. To state each instance where
they vary would be beyond the plan and intended size of
this work. Nor is it advisable even where the most com-
plete local forms and directions are given in any book to
attempt to write any such document as a corporate charter
without professional counsel.
CORPORATIONS. 287
poses of mining or construction of ditches or flumes;
to run. tunnels; or in fact "for any lawful purpose,"
but there, are special provisions in the corporation
chapter which refer only to mining, ore reduction,
and tunneling companies — and other special provi-
sions concerning ditch and flume companies. Pipe
line companies (1891, p. 94) are required to state in
their articles the route of their proposed line. For
filing fees, see p. 298.
Number of Directors.
M. A. S. § 585 is a special section providing that
the number of directors of a mining company shall
not be less than three nor more than nine.
The Par Value of Shares cannot be less than one
dollar nor exceed one hundred dollars, and the shares
may be issued payable in instalments. — § 480.
Rights of Stockholders.
Any stockholder has a right to inspect the books
of the corporation. — § 488. And the holders of fifteen
per cent, may demand a written statement. — § 507.
But there is no Statute allowing stockholders the
right to examine the mine.
The Term of Existence cannot exceed twenty
years. — § 413. But may be revived. — Acts 1899, p.
163.
Stock Paid in Lands.
Any such company may issue stock in -payment
for mines, such stock to be treated as paid-up stock.
— § 490; 582.
Where stock is issued upon excessive overvalua-
tion the holder may be held personally liable. — Kelly
v. Fourth Co. 53 Pac. 959; compare DuPont v. Tilden,
42 Fed. 87.
No personal liability is imposed upon stockhold-
ers for debts, except to the extent of unpaid stock
held by them.— § 486; 497. Directors and officers be-
come liable for failure to make and file an annual
report (Acts 1901, p. 125), or declaring fraudulent
dividends.— § 492.
288 CORPORATIONS.
Annual Meetings of Stockholders are provided for
by Statute, the By-Laws fixing the time and place.
The Colorado Act (1895, p. 150} requires notice to be
published not less than ten days previous to the
meeting, in a newspaper published where the prin-
cipal office is kept, and thirty days' notice to each
stockholder.
Mortgage.
A mining company is forbidden to mortgage its
property except by majority vote of stockholders. —
3 M. A. 8. § 481.
Corporate Deed.
The seal of the Company is prima facie evidence
that it was affixed by corporate authority. — Union
Co. v. Bank, 2 Colo. 226. But to render a conveyance
of real property unimpeachable it should be author-
ized by the Board of Directors, preceded by action
of the stockholders at a meeting called for that
purpose.
Seal.
A corporation may be bound by a scroll seal. —
G. V. B. Co. v. Bank, 95 Fed. 23. And may adopt
new seal when its president withholds the old one.
—Socorro Co. v. Preston, .'/fl N. Y. 8. 1040.
ARTICLES OF INCORPORATION GOLD MINING COMPANY.
WKKKEA.S.. Franklin R. Carpenter, Elbert F. Fitzgerald
and Arthur B. Frcnzel, all of the City and County of Denver,
State of Colorado, have associated themselves together for
purposes of incorporation under the General Incorporation
Acts of the State of Colorado, they do therefore make,
sign and acknowledge these duplicate certificates in writing,
which when filed, shall constitute the Articles of Incorpora-
tion of The Yellow Bug Mining Company.
ARTICLE 1. The name of said company shall be The
Yellow Bug Mining Company.
ARTICLE 2. The objects for which said company is
created are to acquire, hold, work, and operate placer gold
mines and lodes of gold bearing ore in the County of San
Miguel in said State of Colorado. To acquire, own and use
water, water rights and mills incident to the treatment
of gold bearing earth and gold bearing ores, and to do all
things incident to the general business of gold mining.
CORPORATIONS. 289
ARTICLE 3. The term of existence of said company
shall be twenty years.
ARTICLE 4. The capital stock of said company shall
be one hundred thousand dollars divided into one hundred
thousand shares of one dollar each.
ARTICLE 5. The number of directors of said company
shall be three, and the names of those who shall manage
the affairs of the company for the first year of its exist-
ence are Franklin R. Carpenter, Elbert F. Fitzgerald and Ar-
thur B. Frenzel.
ARTICLE 6. The principal office of said company shall
be kept at Placerville in said County and the principal busi-
ness of said company shall be carried on in said County of
San Afiguel.
ARTICLE 7. The stock of said company shall be non-
assessable.
ARTICLE 8. The board of directors shall have power
to make such prudential by-laws as they may deem proper
for the management of the affairs of the company, not in-
consistent with the laws of this State, for the purpose of
carrying on all kinds of business within the objects and pur-
poses of such company.
In witness whereof, the said incorporators have here-
unto set their hands and seals this first day of January, A.
D. 1903.
FRANKLIN R. CARPENTER. [SEAL.]
ELBERT P. FITZGERALD. [SEAL.]
ARTHUR B. FRENZEL. [SEAL.]
STATE OF COLORADO, City and County of Denver: ss.
I, Joseph K. Bozard, a notary public in and for said
County, do hereby certify that Franklin R. Carpenter, El-
bert F. Fitzgerald and Arthur B. Frenzel, who are personally
known to me to be the same persons described in, and who
executed the within duplicate Articles of Incorporation, ap-
peared before me this day and personally acknowledged
that they signed, sealed and delivered the same as their free
and voluntary act and deed.
Witness my hand and notarial seal this first day of
January, A. D. 1903. Joseph K. Bozard,
[SEAL.] Notary Public.
The first seven articles in the above form con-
tain all the statutory requirements. Article 8 in re-
gard to the by-laws, is necessary if it is intended
that the directors instead of the stockholders, shall
make the by-laws.— M. A. 8. § 484.
One of the said duplicates to be filed with the
Recorder of the proper county, and one with the
Secretary of State, and if the business is to be car-
lo
290 CORPORATIONS.
ried on in more than one county, the word duplicate
should not be used, as there must be an original for
each county as well as for the Secretary of State.
Assessable or Non-Assessable.
The chapter concerning corporations provides
for assessments upon shares, where, by the charter
the stock is made assessable, and the statute re-
quires that whether the stock shall be assessable or
non-assessable shall be stated in the above articles;
and each certificate of stock "shall have plainly
printed on the face thereof the word 'assessable' or
'non-assessable' as the case may be."
ARTICLES OF INCORPORATION SILVER MINING CO.
Articles 1 and 2 of a Silver Mining Company
may read:
ARTICLE 1. The name of said company shall be The
Fiat Silver Mining Company.
ARTICLE 2. The objects for which said company is
created are to acquire, hold, work, and operate mines of
silver bearing ore and its associated ores, in the County of
Mineral, in the State of Colorado, and to sell, work, mill,
reduce or treat the product of such mines and do all things
incident to the general business of mining.
Where it is 'desired to transact part of the busi-
ness out of the State the certificate must so state:
§ 493.
ARTICLE 9. A part of the business of said Company
shall be carried on in Ecltley, County of Luzerne, Common-
wealth of Pennsylvania., and the principal office of said Com-
pany out of the State shall be at said Ecleley, at which
office meetings of Directors may be held.
Where, after organization complete, a company
desires to extend its business into other counties, it
may do so without, amending charter, by filing certi-
fied copy from the Secretary of State's office with the
Recorder of the new county. — § 4^4-
On filing the articles a copy certified by the Sec-
retary of State should be procured and preserved as
the legal voucher for corporate existence: at the
same time the Secretary of State issues his "Certifi-
cate of Authority" under the Act of 1901, and, there-
CORPORATIONS. 291
upon, should be called the organization meeting, to
be attended by a majority of the original Board of
Directors (by custom the same persons as the in-
corporators, though not necessarily so). This organ-
ization meeting, so-called, is really the first regular
meeting of the Board of Directors, and at such
meeting the articles as filed should be formally ac-
cepted.
ORGANIZATION MEETING.
Record of first meeting of the Board of Directors
of The Yellow Bug Mining Company, at Placerville, Colo-
rado, January 7S 1903.
At a meeting of the persons named in the articles
of said Company, there being present Franklin R. Carpenter,
Eloert F. Fitzgerald and Arthur B. Frenzel:
On motion Franklin R. Carpenter was elected chairman
and Arthur B. Frenzel,, secretary pro tern.
On motion the Articles of Incorporation as filed in
the office of the Secretary of State and in the office of the
County Clerk of San Miguel County, were accepted as the
articles of incorporation, or charter of said company.
On ballot taken Franklin R. Carpenter was elected pres-
ident of the company, Elbert F. Fitzgerald was elected vice-
president, Arthur B. Frcnzel was elected treasurer, Albert
B. Roeder was elected secretary, and Thomas Cornish was
elected superintendent.
On motion the following by-laws were adopted :
*BY-LAWS.
I OFFICERS.
The officers of this company shall consist of a Pres-
ident, Vice-President, Secretary, Treasurer, and Superin-
tendent, who shall be chosen by the Directors at their first
meeting following the annual meeting of the stockholders
in each year. They shall be elected from the Board of Di-
rectors, except the Secretary and Superintendent, who may
or may not be Directors. Said officers shall hold their re-
spective offices until their successors are appointed and en-
ter upon the duties of their offices. Vacancies among the
Directors may be filled at any meeting of the Board of
Directors, by ballot.
II DUTIES OF PRESIDENT.
It shall be the duty of the President to preside at all
meetings of the Directors, and to sign all bonds, deeds,
*The above by-laws will be found, in general, sufficient ;
but each by-law should be reviewed and such changes made
as may be needed to cover special plans of the incorporators.
292 CORPORATIONS.
agreements or other instruments in writing, made or en-
tered into by or on behalf of the corporation ; to sign all
certificates of stock, and all orders for money on the Treas-
urer, and in general, perform all acts incident to his office.
Ill DUTIES OF VICE-PRESIDENT.
It shall be the duty of the Vice-President to perform
all such functions as belong to the office of President in
the absence of the President.
IV DUTIES OF SECRETARY.
The Secretary shall give due notice of all meetings
of stockholders, and of the Board of Directors ; shall pre-
pare and keep proper books of record and of account for the
business of the company, and such other books as may be
required by law or the Directors may prescribe. He shall
countersign and register all certificates of stock, and other
documents requiring the signature of the President, attach-
ing the corporate seal of the company to all instruments
requiring seal, and perform all such other duties as are
incident to his office. A suitable compensation, to be de-
termined by the Directors, shall be allowed the Secretary
for his services. He shall be the custodian of the corporate
seal.
V DUTIES OF TREASURER.
The Treasurer shall be the custodian of the funds
until the same be disposed of by order of the Board of
Directors. He shall give bond satisfactory to the Board
of Directors, for the faithful performance of his duties.
No money shall be paid out by the Treasurer except on the
order of the President or Superintendent, countersigned by
the Secretary.
VI DUTIES OF SUPERINTENDENT.
The Superintendent shall have control of the work-
ing and developing of the company's mining property ; shall
report to the Board of Directors, for their approval, all
contemplated work, and after such approval, shall have full
power to contract said work. All expenses incurred by
the Superintendent in the working and management or
the company's property shall be borne by the company. A
suitable qompensation, to be determined by the Board of
Directors, shall be allowed him for his services.
VII BOARD OF DIRECTORS.
The Board of Directors shall consist of three mem-
bers, always including the President, Vice-President and
Treasurer. It shall be the duty of the Board to exercise
general supervision over the affairs of the company ; to
receive and pass upon the reports of the Secretary, Treas-
urer and Superintendent, to audit all bills and accounts
CORPORATIONS. 293
against the company, and to direct the Secretary in corre-
spondence.
VIII ANNUAL REPORTS.
The Board of Directors shall cause its officers to make
a full exhibit of their several -departments and to prepare
reports for submission to the annual meeting of stockhold-
ers.
IX DIRECTORS' MEETING.S.
The Board of Directors shall meet at such times as
they shall from time to time determine, and a meeting of
the Board may at any time be called by the President or
any two members of the Board by causing personal notice
to be served upon the Directors at least one day before
the date of such proposed meeting. Two of the Directors
shall constitute a quorum for the transaction of business.
All directors and officers must be stockholders.
X STOCKHOLDERS' MEETINGS.
The first annual meeting of the -company shall be
held at the office of the company in Placerville, at 10
o'clock A. M., on the second Tuesday in January, A. D. 190!i,
and on the same Tuesday of each succeeding year. If
omitted, the Directors shall hold over until their successors
are appointed. Special meetings may be called by the
Board of Directors, or by one-tenth in amount of all the
stock held. Such published notice and personal notice by
mail as may be required by law, shall be given of each
meeting (except adjourned meetings) and the object of the
meeting shall be stated in the notice. Stockholders may
be represented by proxies, which must be exhibited for In-
spection to the meeting. — See Act of 1895, p. 150, and M. A.
8. Sec. 585.
XI CERTIFICATES OF SHARES.
The subscribers to the capital stock of this company
shall be entitled to certificates of their shares, duly signed
by the President and countersigned by the Secretary. The
certificates of stock shall be numbered and registered as
they are issued. Transfers of stock shall only be made on-
the books of the company, either in person or by attorney,
and the possession of stock shall not be regarded as evi-
dence of ownership of the same, unless it appears upon
the stock books of the company - that said certificate was
Issued or duly transferred to the holder of the same.
xn — DEBTS.
No debt shall be contracted against the company ex-
cept by order of the Board of Directors.
XIII DIVIDENDS.
Dividends shall be made not in excess of the net earn-
ings of the company at the close of every fiscal year, which
294 CORPORATIONS.
shall be on the thirty-first day of December of every year ;
or oftener as the Board of Directors may see fit.
XIV CORPORATE SEAL.
This company adopts as its corporate seal, the device
described as follows : A pick and shovel crossed, surrounded
by the name of the company.
XV AMENDMENTS.
These by-laws may be changed, amended or revoked
at any time, by a two-thirds vote of the Board of Directors.
The charter and by-laws being adopted, and the
officers elected, the organization of the corporation
is complete, and the minutes proceed to note busi-
ness as it may be transacted.
Reports and Certificates Required.
After payment of the last instalment of capital
stock the President and a majority of the Board of
Directors are required by Sec. 487 to record a certifi-
cate in the office of the Secretary of State as follows:
CERTIFICATE OF FULL PAID STOCK.
STATE OF COLORADO, County of San Miguel: ss.
The undersigned, Frrnklin R. Carpenter, President,
and Elbert F. Fitzgerald, Director, constituting a majority
of the Directors of The Yelloiv *Bug Mining Company, do
hereby certify, in accordance with Section 487 of Mills' An-
notated Statutes of said State that the amount of the cap-
ital stock of said company, as fixed and limited by its Arti-
cles of Incorporation, is $100,000, and that the whole amount
of said stock has been paid in. That $10,000 thereof was
paid in cash and $90,000 was paid for the purchase of
property.
Witness our hands this 5th day of February, A. D.
I903- FRANKLIN R. CARPENTER,, President.
ELBERT F. FITZGERALD,. Director.
STATE OF COLORADO, County of San Miguel: ss.
Franklin R. Carpenter and Elbert F. Fitzgerald, being
duly sworn, say that they are the officers named in the fore-
going certificate, and constitute a majority of the Board of
Directors of said company ; that they have heard said cer-
tificate read and know the contents thereof, and that the
matters and things therein stated are correct and true.
FRANKLIN R. CARPENTER,
ELBERT F. FITZGERALD,
Sworn and subscribed before me this fifth day of Feb-
ruary, A. D. 1903. Curtis L Greenwood,
[SEAL.] Notary Public.
CORPORATIONS. 295
A copy of said certificate is also to be filed and
recorded in the Recorder's office of each county where
business is done.
It is held that when the capital stock is fully
paid up it is the duty of the officers to make and
record such certificate. — Austin v. Berlin, 13 Colo.
200. Since the Act of 1901, however, the personal
liability avoided by such certificate, is no longer
granted.
Annual Report.
By Act of 1901 (p. 121) an annual report is re-
quired to be filed in the office of the Secretary of
State within 60 days from January 1st. The Penalty
for failure is personal liability of all officers and
directors. The Act requires information and items
in detail never previously exacted and while the
following form is for its own facts in strict compli-
ance with the Statute, the Act is so worded that
its terms must be studied with reference to the status
of each corporation when about to comply or attempt
to comply with its obscure and inquisitorial demands.
ANNUAL REPORT OF MINING CORPORATION.
In compliance with the terms of Section 11, of an Act
of the General Assembly of the State of Colorado, approved
April 6, 1901, The Rough Rider Mining Company makes and
files this Annual Report, and says :
1. The names of its officers and Directors and their
several places of residence, together with the street or busi-
ness address of such officers and Directors, are as follows :
President and Director, E. H. Cook, of Boulder, Colo-
rado.
Vice-President and Director, Geo. W. Kretzinger, of
1036 Monadnock Block, Chicago, 111.
Treasurer and Director, B. W. Begeer, of 1347 Lafay-
ette street, Denver, Colorado.
Secretary, Wm. Byrd Page, of No. 932 Equitable Build-
ing, Denver, Colorado.
Superintendent or Manager, Josiah Winchester, of No.
708, same building.
2. The amount of its capital stock as fixed and deter-
mined by its Articles of Incorporation (and amendments
thereto) is $100,000.
3. The proportion of such capital stock actually paid
in is $100,000, of which $25,000 was paid in cash, and $75,-
000 was paid by purchase of mining property.
296 CORPORATIONS.
4. The amount of the indebtedness of said corpora-
tion at the date of filing this report is $5,000.
5. Said Corporation is now engaged in the active oper-
ation of its business within the State of Colorado.
6. It. has no personal property except tools, supplies
and office furniture. It has twenty men on pay-roll, and is
working a producing mine with no lien encumbrance.
7. The property of said Corporation within this
State is located in the County of Park, and consists of two
Lode Mining Claims, of which the Roosevelt is held under
letters patent of the United States, and the Colonel Wood
is held by possessory right on the public domain.
8. The amount of wrork done and improvements made
on said property since the time of filing its last annual re-
port is $20,000, expended in new hoisting plant and the
development and working of its mines.
Witness the corporate name and seal of said Company,
at the hand of its President, this 5th day of January, A. D.
1903.
THE ROUGH RIDER MINING COMPANY,
By E. H. COOK, President.
Attest :
WM. BYRD PAGE, Secretary.
STATE OP COLORADO, City and County of Denver: ss.
Before me, the subscriber, a Notary Public, in and for
said County, personally appeared E. H. Cook, President, and
Wm. Byrd Page, Secretary of The Rouyh Rider Mining Com-
pany, who being duly sworn, each for himself, saith that he
has read the foregoing Report signed by said E. H. Cook,
President, and that the same and the matters and things
therein stated are true.
E. II. COOK,
WM. BYRD PAGE.
Sworn and subscribed before me, this 5th day of Jan-
uary, A. D. 1903.
Joseyli K. Bozard,
[SEAL.] Notary Public.
Other details are required for ditch companies
and still others for coal mining corporations.
Such report must be signed by the President
and verified by the President and Secretary and the
corporate seal attached. — Acts 1901, p. 124.
In either form, where the stock has been paid
up by purchase of the mine, the certificate must so
state.— M. A. S. § 490.
CORPORATIONS. 297
ARTICLES OF INCORPORATION DITCH COMPANY.
Preamble same as page 288.
ARTICLE 1. The name of said company shall be "The
Deluge Ditch Company."
ARTICLE 2. The objects for which said company is
created are to construct a ditch, and keep and maintain the
same from the stream known as Roaring Fork of the Grand,
tapping such stream at a point about one-quarter mile above
the Jones ranch, and about one hundred yards below Eagle
Cliff, and fifty feet northeast from lone pine tree blazed
D. D. ; the line of said ditch running thence (give course and
distance by survey if possible, so as to describe "the line
of said ditch as near as may be.") The water of said ditch
to be used and sold for placer mining. — Acts 1891, p. 97.
ARTICLE 7. The stock of said company shall be as-
sessable, upon majority vote at stockholders' meeting, as re-
quired by law.
ARTICLES 3, 4, 5, 0, 8 and 9 and acknowledgment
same form as on page 289.
The stream tapped, head of ditch, line of ditch
and intended use of water must always be stated;
also the location of the reservoir if a reservoir is to
be constructed.
Any surplus water they are compelled to keep
for sale, at rates fixed by County Commissioners. —
§ 510.
SMELTING AND ORE-SAMPLING COMPANIES.
The following Articles stating the purposes of
organization are taken from records filed by operat-
ing companies. The other Articles for such or other
like companies should be substantially in the above
form, always observing that the article (No. 7) refer-
ring to assessability of stock, and the requirement
to print "Assessable" or "Non-Assessable" on the face
of the stock certificate is confined to ore-reducing,
mining and tunneling companies. — § 581.
(The Pueblo Smelting and Refining Company.)
ARTICLE 2. The objects for which the said company
hereby formed is created shall be : To buy and sell ores,
metals and other furnace products ; to smelt and reduce
lead, gold, silver, copper and other ores, and refine bullion ;
manufacture lead, copper and iron products and articles
of merchandise, and do a general smelting, refining and
metallurgical business ; to erect necessary buildings, mills,
298 CORPORATIONS.
machinery and appliances ; purchase materials for the proper
working thereof ; and do any and all other things necessary,
proper, or requisite to carry into effect the objects aforesaid.
(The Omaha and Grant Smelting and Refining Company.}
ARTICLE 2. The nature of the business to be trans-
acted shall be :
1st. — The purchase, lease, erection and operation of
smelting and refining works, and the smelting and refining
therein of gold, silver, and other valuable ores and metals.
2nd. — The purchase, lease and operation of mines and
mining property, for the purpose of obtaining said gold, sil-
ver and other valuable ores.
3rd. — The purchase of gold, silver and other valuable
ores and metals for smelting and refining, and the sale and
disposal of the products thereof.
4th. — To acquire by donation, purchase, lease, or oth-
erwise real or personal property of any kind, and to use,
maintain, enjoy, and dispose of the same for the benefit
of said corporation.
(The Taylor & Brunt on Ore Sampling Company.)
ARTICLE 2. The objects for which said company is
created are to acquire, hold and operate mills and works
at and near Aspen, in said County of Pitkin, for the crush-
ing, sampling and testing of mineral-bearing ores ; and to
buy, sell, assay, hold, store, ship and deal in such ores
and their products on its own account, and as factor or
agent for others ; and to do all things incident to the gen-
eral business of maintaining and operating such mills and
works, and dealing in all kinds of mineral-bearing ores
and the products and proceeds thereof.
Stamps.
The War Revenue Act of 1898 requiring stamps
on certificates of stock was repealed by the Act of
April 12, 1902, and no stamps have been required
since July 1, 1902.
Filing Fees.
By Act of April 6, 1901, every corporation upon
filing its articles in the office of Secretary of State
is required to pay $20 if domestic, $30 if foreign,
for the first $50,000 of its capital stock, and 20 cents
if domestic, 30 cents if foreign, for each additional
$1,000 of stock. Upon any increase of capitalization
the charge is 20 cents and 30 cents respectively, for
each $1,000 of increase.
CORPORATIONS. 299
The additional fees to Secretary of State are $5
for "Certificate of Authority," $2.50 for filing impres-
sion of seal, and $2.50 plus five cents for each $1,000
in excess of $50,000 for filing certificate of paid up
stock. Foreign corporations pay $5 for filing copies
of law of the State of their incorporation, and $5
for filing designation of Agency.
License Tax.
By the Revenue Acti of 1902, domestic corpora-
tions having a capital stock of over $25,000 are
charged an annual license tax of two cents upon each
$1,000 of its capital stock. All foreign corporations
are taxed four cents per $1,000 and those whose
stock is less than $1 per share, par value, are taxed
2% cents per thousand shares. The tax is payable
to the Auditor of State on or before May 1st, each
year. The penalty for failure to pay the tax is a
forfeiture of all privileges and of the right to do
business in the State or maintain suits.
Assessments on Stock.
By 3 M. A. 8. § 583a-583c statutory provisions
were enacted for the assessment of shares of com-
panies whose stock is made assessable under the char-
ter or "by the laws of this State." The assessment
is to be made by action of the Board of Directors by
a majority vote, notice of meeting being first given
to each Director. No greater assessment than It)
per cent, can be made at one time, and a second as-
sessment must not be within thirty days after date
of sales under the previous assessment.
The assessment is made payable "immediately"
and if unpaid after thirty days, is considered delin-
quent, and may be advertised for thirty days in a
daily paper published at the place of the chief office
of the company, and also in a daily paper published
where the mine is located (with provisions for cases
where daily papers are not published).
If not paid within twenty days "from the date
the same became delinquent," the secretary is em-
powered to sell the shares at public auction in front
30;j CORPORATIONS.
of the chief office of the company to the highest bid-
der for cash.
The Act read literally, makes the sale to come
off within the period of publication; but it must
mean, if it mean anything, that the sale is to take
place not less than twenty days after the expiration
of the thirty days' publication.
The Act further requires notice to be sent to
each stockholder, informing him of the assessment.
FOP.M OF RESOLUTION TO ASSESS.
Resolved, That an nssessment of five per cent, is hereby
levied and made upon each and every share of the capital
stock of this corporation, payable immediately at the office
of the company to George M. Scott, the treasurer.
NOTICE OF ASSESSMENT.
Office of The Experiment Mining Company,
Equitable Building.
Denver, Colo., Jan. 1, 1903.
To W. E. Bridgman, Stockholder :
You are hereby notified that at a regular meeting of
the Board of Directors of The Experiment Mining Company
this day held at the office of said company, by a majority
vote of all the directors, each and every share of the cap-
ital stock of said company was assessed five per cent, on
the par value, such per cent, amounting to $5.00 on your 100
shares of stock, payable immediately to George M. Scott, the
Treasurer, at this office, address above given, and that such
assessment, if not paid on or before the 3d day of February,
1903, will be delinquent, and your stock will thereupon be
advertised for sale, the sale to take place on the 28th day of
March, 1903, according to the terms of the Act approved
April 3, 1891, entitled "An Act relating to the powers and
duties of the directors of mining stock corporations and
to the assessment and sale of delinquent shares of stock, and
for other purposes relating thereto, and to repeal all laws
inconsistent therewith." C. S. WALLACE, Secretary.
It does not seem that this Act can refer to com-
panies by whose articles the stock is made non-
assessable. Nor does it apply to assessments for in-
stalments of the original purchase price of the shares,
sale of which on default is provided for by M, A. 8.
§ 480.
In the formation of new companies we would
advise that the stock be made assessable. As long
CORPORATIONS. 301
as the mine is in pay no assessments are needed,
but where a mine ceases to pay, there is no practical
method to proceed except by assessment. Any other
course involves the idea of borrowing money and
ultimate sale of the mine, or compelling a few will-
ing shareholders to take the risk which should be
borne by all.
Irregular Action.
A company which has habitually neglected all
formalities cannot plead the want of them to escape
liability.— #. V. B. Co. v. Bank, 95 Fed. 23. So held
where it allowed one director to assume entire man-
agement.— Robinson Co. v. Johnson, 50 Pac. 215. A
resolution of the Board is not necessary to bind the
company where it has had value received with knowl-
edge.— McKenzie v. Poorman Mines, 88 Fed. 112.
Fraudulent Organization.
A company may sue its organizers where the
real price paid is less than that represented to the
stockholders. — Pittsburg Co. v. Spooner, 1$ N. W.
259; 17 Am. St. R. 149. Acts of directors distin-
guished from acts of the company. — Summerlin v.
Fronteriza Co. 41 Fed. 249. Bona fide holder of
stock issued on over valuation not liable to creditors.
— Du Pont v. Tilden, 42 Fed. 87.
Reorganization.
Where a new company is formed with sanie
stockholders or other like suspicious incidents it is
but a successor and liable for the debts and cove-
nants of the old one. — Higgins v. California Co. 55
Pac. 155.
Agent.
The President and Secretary alone have no right
to appoint a general agent. — Johnson v. Sage, 44 Pac-
641.
Miscellaneous Rulings.
Incorporators are liable for preliminary ex-
penses.— Hersey v. Tully, 44 pac- $54; See Hecla Co.
302 FOREIGN CORPORATIONS.
v. O'Neill, 19 N. Y. Sup. 592; Winters v. Hiib Co. 57
Fed. 287. Distinction between de facto and de jure
director. — Rozecrans Co. v. Morey, 43 Pac. 585. In-
stances where officers or stockholders may recover
for services on a quantum meruit. — Severson v. Bi-
metallic Co. 44 Pac. 79; Felton v. West Co. 40 Pac.
70; Ruby Co. v. Prentice, 52 Pac. 210.
Dissolution.
By Act of 1891 (Acts, p. 95) provision is made
for the dissolution of solvent corporations desiring
to go out of business, by publication and filing of no-
tices, without judicial action thereon.
For consideration of the rights of stockholders
when the company has quit business and has no
known Board of Directors, see Tennessee Co. v.
Ayers, 43 8. W. 744.
FOREIGN CORPORATIONS.
A corporation has no recognized existence except
by comity outside of the State of its organization. It
is, however, always allowed to do business elsewhere
by complying with certain statutory conditions for
the protection of local creditors, such conditions
usually including that it file a copy of its Articles
with the Secretary of State and with the County
Recorder of the place where it is intended to carry
on its mining operations or other principal business,
and that it designate a local agent upon whom
process may be served.
Such conditions for the State of Colorado are
that it make and file duplicate certificates, signed
by the President and Secretary, duly acknowledged,
of which the following is a correct form:
DESIGNATION OF PROCESS AGENT.
STATE OF NEW YORK, County of Neiv York: ss.
It is hereby certified, That the Remonetized Silver
Mining Company, a corporation organized under the laws
FOREIGN CORPORATIONS. 303
of said State, doth hereby designate that the "principal
place where the business of such corporation shall be car-
ried on in the State of Colorado," is Central City, County
of Gilpin, State of Colorado, and that Henry C. Becker,
residing at said principal place of business, is the authorized
agent of said company, upon whom process may be served.
Witness the corporate name and seal of said company,
and the signatures of its President and Secretary, this 3d
day of February, A. D. 1908.
REMONETIZED SILVER MINING COMPANY,
[SEAL.] JOHN K. CREEVEY, President.
CLARENCE CARY, Secretary.
STATE OF COLORADO ,, County of New York: ss.
I, Herbert E. Dickson (195 Broadway), Commissioner
of Deeds of the State of Colorado, duly commissioned and
sworn, in and for said County, do hereby certify that John
K. Crecvey, President, and Clarence Gary, Secretary of the
within named Corporation, who are personally known to me
to be such President and Secretary of said Corporation,
personally appeared before me this day, and acknowledged
the within Instrument (in duplicate) to be their free and
voluntary act and deed, and the free and voluntary act and
deed of said Corporation.
Witness my hand and official seal this 3d day of Feb-
ruary, A. D. 1903. Herbert E. Dickson,
[SEAL.] Commissioner for Colorado.
One copy of the above instrument must be filed
with, the Secretary of State, and one in the office
of the Recorder of the proper county.
A similar form, not naming the agent, but desig-
nating him in general terms, was held sufficient in
Goodwin v. Colorado Co. 110 U. S. 1.
M. A. S. § 499, requiring the same certificates,
has been construed as mandatory, and it is inti-
mated that the acquisition of real estate is doing
business within the meaning of the section; but it
does not prevent the company resisting a trespass
by maintaining suit at law. — Utley v. Clark-Gardner
Co. 4 M. R. 39; In re Comstock, 3 Saiv. 223. But a
single act of business will not bring the company
within the requirements of the Act. — Colo. Iron
Works v. Sierra Grande Co. 15 Colo. 499; Cooper Co.
v. Ferguson, 113 U. 8. 727.
And where the matter has been at first neglected
and yet complied with before the suing out of a
quo warranto, or other inquisition, or at least be-
304 FOREIGN CORPORATIONS.
fore adverse rights have accrued, the final compli-
ance would doubtless be considered as having a retro-
active effect in a manner analogous to the case of
naturalization. See p. 282.
The same section declares that all foreign cor-
porations shall be "subject to all the liabilities, re-
strictions and duties which are or may be imposed
upon corporations of like character organized under
the general laws of this State and shall have no other
or greater power;" forbids the purchase or holding
of real estate by foreign corporations except as pro-
vided for in such Act and prohibits any mortgage
or other preference to foreign, to the exclusion of
domestic creditors, postponing any such mortgage
until all domestic debts at the date of its record
shall have been paid.
An amendment (1893, p. 88) adds provisions for
notice of intended mortgage, requiring creditors to
prove their claims or be cut out by such mortgage.
Copy of Articles.
Foreign corporations are further required
(§ 500) to file a copy of their charter in the office of
the Secretary of the State of Colorado; or if "in-
corporated by certificate under any general incor-
poration law, a copy of such certificate and of such
general incorporation law duly certified and author-
ized by the proper authority of such foreign State,
Kingdom or Territory." These papers are not re-
quired to be filed with the County Recorder.
The "proper authority" alluded to would be in
general the Secretary of the State where organized.
Upon failure to comply with the requirements
of either section every officer, agent and stockholder,
is made personally responsible on all contracfs made
while the company remains in default. — § 501. And
this seems to be the practical effect of the Act, mak-
ing the penalty a personal one, and the title will pass
to and out of such a corporation by proper deeds
notwithstanding its failure to comply with these stat-
utes.— Fritts v. Palmer, 132 U. S. 282.
INDIAN RESERVATIONS. 305
By Act of 1891 the reorganization or liquidation
of foreign companies to the prejudice of local share-
holders is attempted to be prohibited. — Acts, p. 99.
Filing fees and taxes. See p. 2.9.9.
Domestic Charter Preferable.
The provisions of the above and like sections in
other states, together with the fact that a foreign
corporation is liable to attachment as a non-resident
in many cases where a defendant; and must file
special security for costs where a plaintiff, renders a
domestic organization preferable in most cases.
Domestic Organization by Non-Residents.
The Corporation Law of Colorado does not in
terms require the organizing associates to be citi-
zens or residents; and although a domestic organiza-
tion composed entirely or substantially of non-resi-
dents would be practically in some respects a foreign
corporation, yet its validity, at least when collaterally
attacked, seems to be conceded. — Humphreys v.
Mooney, 4 M. R. 76. .
INDIAN RESERVATION.
An Indian reservation is not a part of the public
domain open to exploration or occupation, and a
valid mining location cannot be made upon it. —
French v. Lancaster, J/7 N. W. 395. Nor can both
parties waive the .point. — Id. An attempted location
made before the extinguishment of the Indian title
must yield to one made after its purchase. — Kendall
v. San Juan M. Co. 9 Colo. 3^9.
But in Noonan v. Caledonia M. Co. 121 U. S. 393,
the Supreme Court of the United States have ruled
that on the cession of the reservation the claim
becomes valid. This case was followed by the affirm-
ance of the Kendall case above cited (144 U. S. 658)
where the court adjudge that the original location,
although not valid, might have been made good by
306 ORE CONTRACTS.
record in the nature of a relocation within the same
period of time after the opening of the reserve, as is
allowed to record from the date of a discovery. This
not having been done an intervening locator who
entered after the opening of the reservation was held
to have the elder and better title.
A claim within the reservation cannot be pat-
ented.— Copp. M. L. 253. And the location of scrip
thereon is void.— U. 8. v. Carpenter, 111 U. 8. 347.
The court will protect a right to mine by license
from the Indian Nation. — Oolagah Go. v. McCaleb,
68 Fed. 86.
When a reservation is opened it is not necessary
for mineral prospectors to await the issue of the
proclamation. — McFadden v. Mt. View Co. 87 Fed.
154.
ORE CONTRACTS.
An ore purchase contract is not assignable. —
Arkansas Val. 8m. Co>. v. Belden Co. 127 U. 8. 379;
Winchester v. Davis Co. 67 Fed. 45; Wheeler v. Wal-
ton Co. 64 Fed. 664.
Failure to receive pay justifies failure to make
future deliveries. — Cherry Val. Co. v. Florence Co.
64 Fed. 569.
A promise to pay a debt out of the proceeds of
ore is not an equitable assignment of such proceeds.
—Silent Friend Co. v. Abbott, 42 Pac. 318.
Action for conspiracy between officers of the
mine and mill owners to obtain bonus for treating
the ore — presumptions and evidence in such case.
— Fox v. Hale Co. 41 Pac. 308.
A, in Michigan, agreed to sell to plaintiff, graph-
ite ore to be delivered on cars in Mexico; held that
cause of action for non-delivery accrued in Mexico.
— U. 8. Co. v. Pacific Co. 68 Fed. 442.
Construction of ore contracts calling for certain
percentages of mineral and for special assay values
ORB BUYERS. 307
with deductions for moisture. — Trotter v. Heckscher,
4 Atl. 83; 7 Atl. 353; Lehigh Co. v. Trotter, 10 Atl.
608; Anvil Co. v. Humble, 153 U. 8. 540; Martinez v.
Earnshaw, 22 Atl. 668. Measure of damages for fail-
ure to deliver ore. — Patrick v. Colo. Sm. Co. 38 Pac.
236.
Amount of moisture is determinable by tests of
like ore from same mine. — Vietti v. Nesbitt, 41 Pac.
151.
The smelter is not liable for mineral left in the
tailings, there being no proof of negligence. — Guild
Co. v. Mason, 46 Pac, 001.
Where an average of a certain assay is to be ac-
counted for, one month may make up for another. —
Fox v. Mackay, 57 Pac. 672.
Construction of contract for delivery of ore "free
from foreign substance." — Worthington v. Given, 24
So. 739. Of ore breaking contract terminable when
prejudicial to the development of the mine. — Anvil
Co. v. Humble, 153 U. 8. 540.
As to when contract to pay out of ore proceeds
becomes an absolute promise to pay, see Mclntyre v.
Ajax Co. 60 Pac. 552.
ORE BUYERS.
Ore Book to Be Kept.
Every company or individual "engaged in the
business of milling, sampling, concentrating, reduc-
ing, shipping or purchasing ores in the State of
Colorado," is required to keep a book in which shall
be entered at the time of the delivery of each lot
of ore —
First. — The name of the party on whose behalf such
ore is delivered, as stated.
Second. — The name of the teamster, packer or other
persons actually delivering such ore, and the name of the
owner of the team or pack train delivering such ore.
Third. — The weight or amount of every such lot of
ore.
::os ORE BUYERS.
Fourth. — The name and location of the mine or claim
from which it shall he stated that the same has been mined
or procured.
Fifth. — The date of delivery of any and all lots
or parcels of ore. — Sec. 1, Feb. 1, 1S77, M. A. S. Sec. 3227.
The succeeding sections provide that parties
claiming an interest in ore delivered shall have the
privilege of examining such books and for penalties
in case of failure to keep the same. And that neglect
to make proper inquiries from parties bringing ore to
the mill shall not excuse failure to comply. They
also attempt to make the purchaser criminally liable
for ore bought from mines held "contrary to any
penal law now in force," which was intended to in-
clude cases where possession had been taken by vio-
lence, contrary to the provisions of the Jumping Act.
— M. A. 8. § 3165; 3231.
Bullion and Specimen Buyers.
In 1889 a similar Act was passed with refer-
ence to buyers of gold dust, amalgam, bullion and
gold specimens, the intent being to produce means to
trace such property when stolen. — M. A. 8. % 3243-
3246. Justices of the Peace have jurisdiction of vio-
lation of this Statute.— § 3247.
Ore Bought of Wrongful Mine Claimant.
In 1889 the question* of the responsibility of the
ore buyer for .ore taken by trespass having often
arisen and a case of some importance involving the
question then pending in the Supreme Court, an Act
was passed providing for the case of ore taken from
mines, the title to which was in dispute. — M. A. 8.
§ 3235-3242.
It provides that a party in peaceable possession
under claim and color of title is to be deemed the
owner, and the buyer of ore, in good faith is to taRe
title to the ore, but that the party out of possession
may protect himself by notice to the ore buyer, the
following form containing the substance required:
ORE BUYERS. 309
Dcnucr, Colo., Jan. S, 1903.
To The Public Sampling Works:
Take notice that I am the claimant and owner and en-
titled to the possession of the Nightmare Lode Mining Claim,
situate in Creede Mining District, County of Mineral, State
of Colorado : That James Elliott and Loren M. Hart and
persons under them are mining and shipping gold ore,
which is my property, from said claim under the name of
the Pleasant Dream Lode, or under some other name. And
you are hereby notified under the terms of the Statute in
such case made and provided that you will be held respon-
sible for all ores purchased and delivered from said mine,
by said James Elliott and Loren M. Hart, or either of them,
or by any person for them, subsequent to the service of
this notice.
A. B. ROEDER.
The person serving this notice must within five
days thereafter follow it up with suit for injunction,
and provision is made to limit the liability in case
the injunction is not heard within thrty days, and to
avoid its effect if the writ is denied or afterwards dis-
charged, although the plaintiff may ultimately prove
title. If such notice is served and followed by ob-
taining the writ and the party warned persists in
buying the ores in dispute, he is to be held respon-
sible to the person ultimately adjudged the owner.
If suit has been already brought when the notice
is served, add to the above form (§ 3230):
"Suit is pending in the District Court of Mineral
County to enjoin the further shipping or sale of ores by
said parties from said claim."
A proviso is contained in the Act that it shall
not protect against liability for the purchase of ores
taken by persons holding claims under the Mine-
Jumping Act, or ore stolen by lessees.
Ore Mined Under Claim of Right.
The suit in the Supreme Court referred to,
Omaha Co. v. Tabor, 16 M. R. 184, was decided later,
holding the ore buyers liable as trespassers — the de-
cision making no reference to the point really in-
volved or the line of authorities relative to the point
— that, where personal property is produced from
real, by the labor of a party in possession with claim
and color of title, it becomes marketable without
310 PENAL PROVISIONS.
regard to tho ultimate decision on the question of
who was the owner of the realty. — Brown v. Cald-
ivell, 12 M. R. 674; Smith v. Idaho Q. M. Co. 11 Pac.
878; Mather v. Trinity Church, 14 M. R. 472; Lehigh
Co. v. N. J. Co. 26 Atl. 920; Harlan v. Harlan, 15 Pa.
St. 507; Anderson v. Hapler, 34 III. 436; Page v.
Fowler, 28 Cal. 605; National Co. v. Weston, 1~> Atl.
569; Giffin v. Pipe Lines, 33 Atl. 578.
PENAL PROVISIONS.
False Weights and Measures,
There are in all the mining States penal Stat-
utes more or less alike in wording and intent pre-
scribing punishment for such self-evident offenses
as the using of fraudulent gold dust scales (M. A. S.
§ 1380) false assay or false ore-buyers' weights and
scales (M. A. 8. § 3232) or the certifying to false
assays or making false return of ore weight or value
(M. A. 8. § 3233) or refusing to turn over proceeds
of gold quartz under the old system of custom work.
— M. A. 8. § 1381.
Debased Gold Dust.
Sections 1262 and 1263 make it penal to know-
ingly have or pass debased gold dust. In Peo. v.
Page, 1 Ida. 102, the defendant was convicted on in-
dictment for having in possession instruments for
manufacturing bogus gold dust. In Peo. v. Sloper,
1 Ida. 158 and Peo. v. Page, Id. 189, the offense of ut-
tering such material is discussed.
Salting Ore.
M. A. S. Sec. 1391. — That every person who shall
mingle or cause to be mingled with any sample of gold or
silver-bearing ore, any valuable metal or substance whatever
that will increase or in any way change the value of said
ore, with the intent to deceive, cheat or defraud any per-
son or persons, shall, on conviction thereof, be punished
by a fine not less than five hundred nor more than one
thousand dollars, or by confinement in the penitentiary for
PENAL PROVISIONS. 311
a term not less than one nor more than fourteen years, or
by both such fine and imprisonment. — Feb. 12, 187^.
Ore Stealing by Lessees.
M. A. S. Sec. 3234.— -If any person, lessee, licensee or
employee in or about any mine in this State, shall break
and sever, with intent to steal the ore or mineral from any
mine, lode, ledge or deposit in this State, or shall take,
remove or conceal the ore or mineral from any mine, lode,
ledge or deposit, with intent to defraud the owner or owners,
lessee or licensee of any such mine, lode, ledge or deposit,
such offender shall be deemed guilty of felony, and on con-
viction shall bo punished as for grand larceny. — Feb. 7,
1S77.
This section does not apply to ore stealing by
strangers, or to what at common law would be con-
sidered larceny, in any case where no privity exists
between the parties. Its constitutionality was
doubted under certain technical clauses of the con-
stitution, but it has been declared valid in Clare v.
Peo. 9 Colo. 122.
Trespass Not Larceny.
Taking of ore by severing it from the realty,
accompanied by its immediate asportation, can in no
case be considered larceny. — Peo. v. Williams, 4 M.
R. 185; State v. Berry man, Id, 199; State v. Burt, Id.
190.
This distinction is in some of the cases referred
to as unsubstantial and technical, although its force
as decided law is not questioned. On the contrary,
it is a distinction necessary to check the constant
tendency to seek a criminal remedy where the civil
remedy is ample, and in almost all cases of such
severance a felonious intent is wholly wanting.
Removing Location Marks.
M. A. S. Sec. 1423. — That if any person or persons
shall wilfully and maliciously deface, remove, pull down,
injure or destroy any location stake, side-post, corner-post,
landmark or monument, or any other legal land boundary
monument in this State, designating, or intending to desig-
nate, the location, boundary or name of any mining claim,
lode or vein of mineral, or the name of the discoverer, or
date of discovery thereof, the person or persons so offending
shall be guilty of a misdemeanor, and on conviction thereof
shall be fined not more than one thousand dollars, or im-
prisoned not more than one year, at the discretion of the
312 PENAL PROVISIONS.
court ; Provided, That this act shall not apply to abandoned
property. — Feb. 9, 187G.
Under a statute on this subject it was held that
there must be proof of a lawful stake on a valid min-
ing claim — and that where the only proof of discov-
ery was that the stake was posted after finding
"quartz and vein matter," there was no proof of a
valid location stake, such as the law was intended
to protect. — Territory v. McKey, 19 Pac. 395.
Malicious Mischief.
By M. A. 8. § 317 J, -it is made a misdemeanor to
unlawfully destroy any shaft-guard or remove the
timbers from any shaft, incline or tunnel.
Cutting Timber or Removing Buildings.
Besides the above section as to malicious mis-
chief there are two sections (3167, 3168) harsh and
cruel, in denning mere trespass into crime, by leav-
ing out entirely the element of malice or other crim-
inal intent, making the cutting of timber or re-
moving of buildings a misdemeanor. The strictest
construction against it has been heretofore given to
a statute of like character. — Bradley v. Peo. 8 Colo.
599.
Jumping Claims by Stealth or Violence.
M. A. S. § 3165, passed in 1874, prohibits acts of
this character. The Act consists of a single para-
graph of interminable length. It makes the asso-
ciation of two or more persons for the purpose of
taking possession of a claim in possession of another,
by stealth or violence, a misdemeanor punishable by
imprisonment not to exceed six months and by fine
not to exceed $250. The section is intended to pre-
vent what has commonly been termed "jumping,"
which word is met with in some of the old statutes
as well as in the district rules, and occasionally in
law reports. — Arnold v. Baker, 7 M. R. Ill; Mur-
phy v. (7o&&, 5 M. R. 330. As a penal statute it is
awkwardly framed, and the substantial remedy is by
a section passed at the same time, by which pusses-
PENAL PROVISIONS. 313
sion is restored to the party forcibly dispossessed. —
See p. 334.
Homicide Ensuing From Mine Jumping is made
murder in the first degree by Act of 1874,
amended in 1876 (M. A. 8. § 3166), but this ill ad-
vised provision is doubtless now nugatory the sec-
tion of the penal code defining murder, having been
since repeatedly amended. — Acts of 1901, p. 153.
Coal Mines.
There are also special Acts, M. A. 8. § 3181-3204.
and Acts of 1893 p. 347 regulating coal mines, spe-
cially providing for inspection of same and
guarding against spontaneous combustion, gob-fires,
open pits, fire damp and other dangers.
The Federal Act of March 3, 1891 (26 8 tat. L,
1104) provides for the inspection and regulation of
coal mines in the Territories and prohibits employ-
ment of children in the same.
Oil Wells are required to keep their products from
emptying into any natural water course. — M. A. S.
Ventilation — Children — Strikes.
The Constitution, Art. 16, § 2, requires the pas-
sage of laws securing safety escapes and ventilation
in mines, but there have been no statutes yet passed
upon these subjects except the Colliery Acts above
mentioned. The employment of children under four-
teen years of age is forbidden by statute, § 413-
There are no Acts especialy referring to strikes
(barring the Arbitration Act of 1897), negligence of
employers, or attempting to regulate working of
mines (other than coal mines) under penalties.
See INSPECTOR.
314 EJECTMENT.
EJECTMENT.
Pleadings.
Under Code practice the names of the various
actions are abolished, but the distinctions being in-
herent, the term Ejectment has its specific applica-
tion the same as formerly.
Section 267 Colo. Code requires a concise state-
-ment in the complaint of the nature of the title when
possessory.
Supporting Adverse Claim.
It is the proper action to bring, and the one in
fact generally brought in support of an adverse claim.
—Becker v. Pugh, 15 M. R. 30.',; Burke v. McDonald.
IS Pac. 351. In such suit it is immaterial which party
is in actual possession at the time when the action
was brought. — Id. And no proof of an ouster is
required. — Golden Fleece Co. v. Cable Go. 1 M. R. J20.
Or each party may be in possession of a part of the
contested premises. — Rose v. Richmond Co. 27 Pdc.
110'). Notifying defendant not to work is an ouster.
— Bramlett v. Flick, -57 Pac. 869.
The object of the suit is to determine the right
of possession, and the result is to decide which party
is entitled to a patent from the United States. The
Government being thus an interested party, each
side must prove its own case affirmatively, and to
either recover or successfully defend must show a
valid location. — Bay State Co. v. Brown, 21 Fed. 167;
Jackson v. Roby, 109 U. 8. W> ; McG-innis v. Egbert.
15 M. R. 329; Rosenthal v. Ives, 15 M. R. 324. Neither
party is entitled to a verdict upon mere proof of
prior possession alone — as is the rule in a contest
where individuals only are interested. — Sears v.
Taylor, » M. R. 318. But possession alone is good
against an intruder, especially one who enters by
EJECTMENT. 315
violence. — Haws v. Victoria Co. 160 U. S. 303. Pos-
session may become incidentally a material issue in
the case. — See ADVERSE CLAIM.
Averment of Suit Brought in Time.
In a complaint carefully and technically drawn
there will be an averment that the adverse claim was
filed within the period of publication and the suit
brought within the 30 days, but both the right of the
thing and the weight of authority is that they are
not essential averments. If, in fact, the adverse
claim was not filed or the suit not brought within
these respective limited periods it is a matter of
defense to be raised by the answer. — Providence Co.
v. Marks, 60 Pac. 938; Marshall Co. v. Kirtley, 12'
Colo. 417; Altoona Co. v. Integral Co. 4$ Pac. 1047;
Pennsylvania Co. v. Bales, 70 Pac. 444-
The cases to the contrary are Cronin v. Bear
Creek Co. 32 Pac. 204; Mattingly v. Lewisohn, 19 Pac.
310.
No Second Suit.
If suit be dismissed a second suit cannot be
brought after the expiration of the thirty days. —
Steves v. Carson, 16 M. R. 12; and if not filed in
time the suit cannot be supported as an ordinary
ejectment. — Hunt v. Eureka Gulch Co. 14 Colo. 451.
Second Trial.
The right, as of course, to a second trial in eject-
ment in Colorado is abolished.— Acts 1899, p. 199.
Possession Without Location — Location Without
Discovery.
The Congressional Act, § 2320, says that "no
location of a mining claim shall be made until the
discovery of the vein." And in sequence to this it
has been ruled that if there is no valid location there
can be no rightful possession. — Belk v. Meagher, 1
M. R. 510; Sweet v. Webber, 7 Colo. 450. A pros-
pector, at least after he has discovered mineral, has
the right to be undisturbed in whatever shaft or
316 EJECTMENT.
other work he is prosecuting. — Faxon v. Barnard, 9
M. R. 515. But only by compliance with the Statute
(by a valid location) can he prevent other prospec-
tors from entering upon any ground except that in
his actual occupation. — Becker v. Pugh, 15 M. R. 304.
The posting of notice without discovery or indica-
tions of mineral cannot warn off other prospectors.
— Erhardt v. Boaro, 15 M. R. 447. He may protect
himself in his pedis possessio (the ground in actual
as distinguished from constructive possession),
while in the search for, before he has discovered,
mineral. And as against another miner, where
neither has discovered a vein, he has the better
right.— Field v. Grey, 25 Pac. 793.
The question which these citations lead up to is
this: Can a prospector, before discovering mineral,
stake off a full claim and keep off all other pros-
pectors while he is engaged in hunting for mineral?
In other words, can he set up his stakes first and
sink his discovery shaft afterwards, on the suppo-
sition that when he does strike the vein his stakes
already set will be found to cover the legal width
on each side? Can he, in spite of the law which
says he cannot, make a valid location before dis-
covery: or, which is the same thing, have all the
practical benefits of a location, before such discov-
ery? The cases go to the length of protecting his
actual workings — and this, would prevent encroach-
ment so close as to hinder work or threaten a breach
of the peace. The Boaro case seems to intimate that
he may protect himself when at work on float, or
after substantial assurance of the proximity of the
lode. In the Field case the point is approached and
almost decided, that he may hold by location with-
out discovery. The burden of the other cases and
the text of the law is against the proposition — that
staking a claim before discovery excludes other pros-
pectors. All have the same right to seek till one has
found; no one has a right to fence out others from
the right of seeking what he himself is only seek-
ing. See pp. 30, 33. After discovery is made the
EJECTMENT. 317
ownership of everything within the boundaries is
practically absolute. — Seymour v. Fisher, 16 Colo. 192.
Possession — How Proved.
A person who has purchased a mining claim
which had been properly located and marked out
upon the ground, and who is personally or by his
agents upon the claim, working and developing it,
and keeping up the boundary stakes and marks
thereof, is not merely in the constructive possession
of such claim by virtue of mining laws, but is in the
actual 'possession of the whole claim: such posses-
sion is a possessio pedis, extending to the boundary
lines of the claim. — North Noonday Co. v. Orient Co.
9 M. R. 531. Digging a shaft, building a cabin, etc.,
held proof of possession. — Koons v. Bryson, 69 Fed.
297.
Actual occupation of a part of the claim under
papers calling for the entire tract by metes and
bounds, gives constructive possession of the entire
tract. — Harris v. Equator Co. 12 M. R. 178; Attwood
v. Fricot, 2 M. R. 305; Hess v. Winder, 12 M. R. 217.
Possession is a question of law. — Jordan v.
Duke, 36 Pac. 896. A witness must testify to facts,
and it is for the Court to say whether these facts
amount to possession. — Thistle v. Frostburg Co. 10
Mel. 129. But the uniform holding of the United
States Court, at Denver, has been that the question
as to possession may be asked directly, leaving it to
the cross-examination to bring out whether the facts
stated amount to possession, and this is the more
sensible practice.
The possession of the surface enclosing the apex
is the possession of the vein wherever the dip may
carry it. — Montana Co. v. St. Louis Co. 102 Fed. 431.
A prospector drilling for oil is in possession and
ejectment is the remedy to test his right of posses-
sion.— Cosmos Co. v. Gray Eagle Co. 112 Fed. //.
An Equitable Defense may be set up in eject-
ment.— South End Co. v. Tinney, ,'?•> Pac. 89. Such
318 EJECTMENT.
defense must be specially pleaded. — Brady v. Husby,
33 Pac. 801.
Title in Third Party.
The rule that plaintiff must recover on the
strength of his own title does not prevail in an ac-
tion between possessory claimants. — Strepey v. Stark,
7 Colo. 622; 11 M. R. 28; Murray Co. v. Havenor, (M
Pac. 762. Otherwise, as to parties claiming under
patent, or in ordinary contests as to legal title. —
Dyke v. Whyte, 17 Colo: 296. A patentee has no
right to disturb any person in possession of ground
under but excluded from his patent. — Reynolds v.
Iron Silver Co. lo M. R. 591.
The Location Certificate as Evidence — Presump-
tion of Location.
Where a plaintiff has been in actual possession
of his claim for the full period of the Statute of
Limitations a presumption may be indulged as
against a wrongdoer at least, that his location was
regularly made, without putting him to proof of its
successive steps. — Harris v. Equator Co. supra.
When the location has been made for a considerable
time and is held by bona fide purchasers the location
certificate is prima facie evidence of discovery and
location. — Cheesman v. Hart, 16 M. R. 263. To same
effect.— Yreka Co. v. Knight, 65 Pac. 1092. In
Cheesman v. Shreeve, 40 Fed. 791 ; 17 M. R. — , it was
held presumptive evidence of discovery. It is evidence
of the performance of all the things which the Stat-
ute requires it to recite. — Strepey v. Stark, 7 Colo.
619. But that it is in general presumptive proof
of location seems to be doubted in Niles v. Kennan,
62 Pac. 360.
The defendant may show that plaintiff's discov-
ery was upon land not subject to location and the
claim therefore invalid. — Girard v. Carson, 44 Pac-
•~>08. See citations p. 39.
Ejectment Lies to Recover Ditch and water rights.
— Integral Co. v. Altoona Co. 75 Fed. 379.
FORCIBLE ENTRY. 319
Non-Joinder of Co-Tenant.
It is no defense that all of plaintiff's co-owners
are not made parties to the suit. — Weese v. Barker,
7 Colo. 178; Erhardt v. Boaro, 15 M. R. 473.
Allowance for Improvements.
A defendant holding by ~bona> fide claim of title
is by Statute in instances to be allowed for improve-
ments. But mining is not necessarily an improve-
ment.— Bacon v. Thornton, 51 Pac. 153.
FORCIBLE ENTRY.
The acts concerning forcible entry and unlawful
detainer (M. A. 8. Chap. 53) apply to possessory as
well as other claims: but those acts are so involved,
and so abrupt and cruel in their attempt to substi-
tute haste for deliberation, that they result in driv«
ing to appeals and in the end to more lengthy and
costly litigation than where ejectment is resorted
to in the first instance.
Like Acts in other states — the repeated attempts
by summary process to deprive a defendant of his day
in court under pretense of doing speedy justice —
are open to the same comment. Except as against
a tenant holding % over in defiance of his lease or re-
fusing the payment of royalty or rent, this action
will always be found a dangerous substitute for the
ordinary action of ejectment. Especially is this the
case where actions are commenced before Justices of
the Peace, before whom proceedings are so vexa-
tious, oppressive, and attended with so much heavier
costs- than such as accrue in Courts of Record, that
it is rarely advisable to seek the remedy for any
wrong, in any form of action, before them.
320 MEASURE OF DAMAGES.
MEASURE OF DAMAGES.
Trespass for Ore Taken.
The true measure of damages depends upon cir-
cumstances of aggravation, ranging from the profits
of working to the gross value of the ore after break-
ing from the stope. — Empire Co. v. Bonanza Co. 67
Cal. 406; In re United Merthyr Co. 10 M. R. 153; Ege
v. Kille, Id. 212.
The cost of mining should be deducted from the
value of the ore in all cases where neither fraud
nor culpable negligence constitute any element of
the case. — Waters v. Stevenson, 10 M. R. 240; 29 Am.
Rep. 293; Durant Co. v. Percy Co. 93 Fed. 166.
Under ordinary circumstances the just rule of
compensation is the value of the rock, coal, ore or oil
before the mining or quarrying began — the value in
place. — Dougherty v. Chesnutt, 5 8. W. 444,' Coal
Creek Co. v. Moses, 15 M. R. 544; Ege v. Kille, 10
M. R. 212; Dyke v. Nat. Tr. Co. 49 N. Y. 8. 180. And
where the ore has been taken by defendant's lessee,
the royalty may be taken as the net profit. — Colo.
Cent. Co. v. Turck, 70 Fed. 294; Neiv Dunderberg Co.
v. Old, 97 Fed. 150.
In willful trespass, or where the defendant has
mingled the ore or taken any steps to prevent ulti-
mate proof of its value, these acts are to be taken
against the defendant. — Cheesman v. Shreeve, 40
Fed. 788; even so far as to throw the burden of
proving the value upon the defendant. — Little Pgh.
Co. v. Little Chief Co. 15 M. R. 655; St. Glair v.
Cash Co. 47 Pac. 466; and in cases of fraud a co-
tenant may even be denied plaintiff's share of legiti-
mate expenses. — Foster v. Weaver, 15 M. R. 551. A
wrongdoer is not entitled to cost of mining. — Benson
Co. v. Alta Co. 145 U. 8. 428; Sunnyside Co. v. Reitz,
39 N. E. 541.
MEASURE OF DAMAGES. 321
Plaintiff may prove assays of ore left standing
and computations of what was taken from the stopes
— but an averaging estimate of how much each miner
might have broken is too remote. — Golden R. Co. v.
Buxton Co. 97 Fed. 413.
In Omaha Co. v. Tabor, 16 M. R. 184, the Court
adopted the value of the ore when it became a chat-
tel by severance from the realty. That is the rule
where there was no bona fide claim of right, and
under the circumstances of that case was an ex-
treme ruling and against the almost unbroken weight
of authority.
Where the Mine is Under Lease and ore is taken
by trespass, the lessee can recover in trover or
trespass.— -Hartford Co. v. Cambria Co. 53 N. W.
4; Attersoll v. Stevens, 10 M. R. 67. And the
lessor may recover to the extent of his royalty.
—StocTcbridge Co. v. Cone Works, 6 M. R. 317. Where
the lessor treats disputed ground as his own he is
liable to the owner for coal taken by his lessee. —
Dundas v. Muhlenberg, 14 M. R. 437. The same as
to an oil lease to the full value of the leasehold in-
terest.— Duffield v. Rosenzweig, 23 Atl. 4>
No Deduction for Developments.
By Statute, § 272 of the Code, in suits for mesne
profits after recovery in ejectment (which does not
necessarily include every trespass suit) "offsets" are
not to be allowed for "timbering, cribbing, improve-
ments or developments." (Acts 1895, p. 1^1.) Where
a Legislature attempts to fix the measure of damages
it is a close approach to the exercise by the Legis-
lature of the power belonging exclusively to the
courts.
Special Injury to the Mine cannot, in trespass, be
proved as damages, unless specially declared for. —
Patchen v. Keeley, 14 Pae. 347.
Mesne Profits.
At common law a plaintiff out of possession
could not recover for the ore taken until he had re-
11
322 NEGLIGENCE.
covered possession by ejectment. — Hugunin v. Mc-
Cunniff, 14 M. R. 463. Under the Colorado Code the
practice has been to sue for such damages in the
same action or by separate actions after recovery.
For such second action the Statute seems to plainly
provide. Code Sec. 272 (and Amendments, 1895, p.
141, 1899, p. 161). Or he may recover in a single
action.— Acts 1893, p. 349. The case of Ghost v.
Shuman, 4 Colo. App. 88, sometimes cited on this
point, makes no mention of section 272 and its spe-
cial reference to a second suit in case of mining
trespasses.
In Miscellaneous Cases.
For the measure of damages on refusal to ac-
cept deed, see Gilpin M. Go. v. Drake, 8+ Colo. 586.
On breach of contract to lease. — Chambers v. Brown,
28 N. W. 561. In cases of negligence. — Moody v.
McDonald, 2 M. R. 187. On tunnel contract. — Monroe
v. Northern Pac. Co. Id. 652. Against lessor for
mining the ground leased.- — Chamberlain v. Collin-
son, 9 M. R. 37. Against lessee for breach of cove-
nants to mine. — Cleopatra Co. v. Dickinson, 68 Pac.
456; Colo. Fuel Co. v. Pryor, 25 Colo. 540. Purchase
of stock induced by defendant's false representations.
— Smith v. Bolles, 16 M. R. 159; Warner v. Benjamin,
62 N. W. 179. Conversion of stock of no fixed market
value. — MoynaTian v. Prentiss, 51 Pac. 94-
On sale of coal. — Osgood v. Bander, 39 N. W.
887. For stoppage of work on contract to sink, be-
fore shaft complete. — Mooney v. York Co. 46 N. W.
376.
ACTIONS BASED ON NEGLIGENCE, ACCI-
DENTS, ETC.
The same rule governs the liabilities of own-
ers, lessees and contractors in case of accident to
employes, as controls in other cases where the rela-
tion of master and servant exists and negligence is
NEGLIGENCE. 323
the foundation of the action. — New York Co. v.
Rogers, 11 Colo. 6; Me Andrews v. Burns, 39 N. J. L.
Ill; Perry v. Ricketts, 9 M. R. 687; Hall v. Johnson,
9 M. R. 68^; Quincy Co. v. Hood, 12 M. R. 148; Strah-
lendorf v. Rosenthal, 10 M. R. 676.
The Degree of Care required of the master is fully
stated in Southwest Co. v. Smith, 85 Va. 806; 17 Am.
St. R. 59. The miner has no recovery for the ordi-
nary and unavoidable risks of the business. — Chero-
kee Co. v. Britton, 45 Pac. 101.
Instances of Responsibility.
He is liable for failure to timber dangerous
ground. — Trihay v. Brooklyn Co. 15 M. R. 535;
Sampson Co. v. Schaad, 15 Colo. 197. Or for failure
to observe his own code of signals. — Silver Cord Co.
v. McDonald, 16 M. R. 171. Or defective rope or
hoisting gear. — New York Co. v. Rogers, 11 Colo. 6;
Myers v. Hudson Co. 150 Mass. 125; Donnelly v.
Booth Co. 37 Atl. 874. Or for scales, the fall of
which should have been foreseen. — Buckley v. Port
Henry Co. 2 N. Y. S. 133; U. P. Ry. v. Jarvi, 53
Fed. 65. For a preventable cave. — James v. Emmett
Co. 21 N. W. 361; Pantzar v. Tilly Co. 99 N. Y. 368.
For rotten ladder. — Reese v. Morgan Co. 54 Pac. 759.
For sending men into a blind upraise known to be
filled with bad air. — Portland Co. v. Flaherty, 111
Fed. 312.
The mine owner must look to the proper sup-
port of his gangways and to the timbering and to
the machinery above. — Quincy Co. v. Hood, supra;
Strahlendorf v. Rosenthal, supra; Ardesco Co. v.
Gilson, 10 M. R. 669; Soyer v. Great Falls Co. 37
Pac. 838. Failure to examine gangways. — Ashland
Co. v. Wallace, 42 S. W. 744.
The miner has a right to assume that the roof
is safe.— Vanesse v. Catsl)urg Co. 28 Atl. 200. The
same as to the machinery. — Myers v. Hudson Co.
150 Mass. 125; 15 Am. St. R. 176.
The owner is liable for accidents resulting from
experimenting with new and untried explosives. —
324 NEGLIGENCE.
Smith v. Oxford Go. 2 M. R. 208. Or for setting
new employes at- work fitting caps. — Rillston v.
Mather, 44 Fed 743; same case, 156 U. S. 391. Or
storing magazines too close to works. — Bean v.
Pioneer Co. 56 Am. R. 106. He must use all appli-
ances readily obtainable known to science to prevent
gas explosions. — Western Co. v. Berberich, 94 Fed.
329.
He is responsible when the accident can be
traced directly to his own fault or the fault of his
partner. — Mellors v. Shaw, 9 M. R. 678. And gen-
erally where traceable to the fault of the superin-
tendent or foreman.
Misfire.
Consideration of what is reasonable time to wait
for blast. — Eureka Co. v. Bass, 8 So. 216. Full case
on. — Anderson v. Daly Co. 50 Pac. 815.
The Lessor is not liable for the lessee's negligence.
— Smith v. Belshaw, 26 Pac. 834. Otherwise, when he
lets machinery already out of condition. — 1 Thomp.
Neg. 317.
Under Contractor.
The mine owner is not in general liable for ac-
cidents occurring under a contractor. — Lendberg v.
Brotherton Co. 42 N. W. 675; Welsh v. Lehigh Co. 5
Atl. 48.
Contributory Negligence — Co-Employee.
The mine owner, as a general rule, is not liable
when the accident was in whole or in part attributa-
ble to the negligence of the party injured or to the
carelessness of a fellow workman not occupying a
directing or superior position to the party injured.
— Kevern v. Prov. Co. 70 Cal. 392; Ardesco Co. v.
Gilson, 10 M. R. 669; Berea Co. v. Kraft, Id. 16;
Trihay v. Brooklyn Co. 15 M. R. 535; Colo. Midland
Ry. v. O'Brien, 16 Colo. 220. It is not necessarily
contributory negligence to use fire for comfort when
dynamite is being thawed. — Bertha Co. v. Martin,
22 8. E. 869.
REPLEVIN. 325
Negligence of fellow servant is no defense if
the master knew of the danger. — Hancock v. Keene,
32 N. E. 329. That the accident was chargeable to a
co-employe is no longer a defense in Colorado. —
Acts 1901, p. 161.
Remaining in Employ After Danger Known is
held in instances to be a defense. It is sometimes
classed as contributory negligence, though this is a
mere abuse of terms: it is only acquiescence, per-
haps from moral necessity, in the negligence of the
master, perhaps criminal in degree. — Lord v. Pueblo
Co. 12 Colo. 390; Davis v. Graham, 2 Colo. App. 210.
It is hard for the reasoning powers of man to con-
clude that this does not amount to a premium on
negligence.
If the master promise to repair, the workman
may rely on the promise and remain. — Rogers v.
Leyden, 26 N. E. 210.
EEPLEVIN.
Ore Taken Under Claim of Title,
Where a party is in possession of a mine under
a 'bond fide claim of title, the party out of possession
cannot maintain, replevin, or an action un-der the
code in the nature of replevin, for the ore taken
from the same; because the trial of the right of
property in the ore in such case would necessarily
involve the trial of the title to real estate. The cases
sustaining this proposition are cited ante p. 310.
In a case of replevin for ore in Montana which
brought up the question of apex rights, the Court
took the novel position that it involved no dispute
as to title and was only a matter of boundaries. —
Driscoll v. Dumooody, 16 Pac. 726.
Defendant cannot re-replevin ore. — Morris v.
DeWitt, 12 M. R. 680.
326 INJUNCTION.
INJUNCTION.
At some stage of its progress a contest over a
working mine is almost sure to suggest this sort of
relief. It is true that the prayer for an injunction
is always to a certain extent addressed to the dis-
cretion of the Court, but the exercise of this discre-
tion does not imply the total absence of principles
applicable to the exercise of this discretion.
The Ground for the Application of Injunctive
relief is that the property may be preserved pend-
ing litigation for the ultimate use of the right-
ful owner and may not in the meanwhile be de-
stroyed by a trespasser. But the pendency of liti-
gation is not of itself sufficient; the complainant
must go farther and show that his case is based
upon substantial facts, and that there is a probabil-
ity of a decision in his favor when the cause is
tried on its merits. As he asks relief in advance of
the trial, it is only just that he make it appear that
the trial When had will show that he was in fact
entitled to this protection; and especially so when
a decree of this sort, wrongfully issued, may be and
often is as great an injury to the defendant as the
conversion of some of the ore is to a rightful com-
plainant.— Capner v. Flemington Co. 7 M. R. 263;
Clavering v. Clavering, 14 M. R. 358; Irwin v. David-
son, 7 M. R. 237.
Parties.
One who has a contract to sink an oil well
entered into before the suit, is not bound by an in-
junction against his employer. — Dunham v. Seiber-
ling, 39 N. E. 1044. Lessees should be made parties.
—High Inj. § 690.
INJUNCTION. 327
Laches.
Further, to entitle him to injunctive relief the
complainant must not have been guilty of unreason-
able delay nor have allowed the defendant to have
proceeded without objection to expend money in
good faith upon the property. — Klein v. Davis, 27
Pac. 511; Parrott v. Palmer, 3 M. & K. 632; Real del
Monte Co. v. Pond Co. 7 M. R. 4-52; Emma Mine case,
Id. 493; Field v. Beaumont, Id. 251 ; Mammoth Co.'s
Appeal, Id. 460; Patterson v. Hewitt, 66 Pac. 552.
The Solvency or Insolvency of the defendant, as
well as many other circumstances applicable to par-
ticular cases, may be taken into account, but is not a
controlling consideration when the case is otherwise
clear. — Lockwood v. Lunsford, 7 M. R. 532; Hamilton
v. Ely, 4 Gill, 34; Sierra Co. v. Sears, 7 M. R. 549;
Moore v. Ferrell, Id. 281; Irwin v. Davidson, Id. 231 ;
Parker v. Furlong, 62 Pac. 490.
Title in Issue.
In cases where a determination of the legal title
is necessary to finally decide the rights of the par-
ties, the complaint should be framed to procure an
issue of that sort; or a previous suit must be pend-
ing which will result in determining the title; or a .
separate action must be brought for such purpose.
In the United States Courts where law and equity
distinctions are strictly maintained, separate issues
must always be made. If no suit be pending to try
title the court may order such suit to be brought as
a condition precedent to the granting of the writ. —
Merced Co. v. Fremont, 7 M. R. 313; U. S. v. Parrott,
Id. 335; Grey v. Northumberland, Id. 250; Old Tele-
graph Co. v. Central Co. Id. 555. And such has
been the common practice in the Federal Court. —
Stevens v. Williams, 5 M. R. 449.
A plaintiff in possession is not required to bring
his action at law. — Allen v. Dunlap, 33 Pac. 675. The
writ may issue to preserve the property when the
issue is between contestants in an equity case. — St.
Louis Co. v. Montana Co. 58 Fed. 129. The writ will
328 INJUNCTION.
not go when the plaintiff's title is not clear and the
legal remedy is adequate. — Smith v. Jamison, 3 8.
W. 212.
Preservation of the Property.
The gist of the case and the foundation of equity
jurisdiction is to save the property from destruc-
tion pending the litigation. — Thomas v. Oakley, 7
M. R. 254; Bracken v. Preston, Id. 267; Merced Co.
v. Fremont, Id. 313; Moore v. Ferrell, 7 M. R. 28 /;
Hess v. Winder, 34 Col. 270; West Point Co. v. Rey-
mert, 7 M. R. 528; U. 8. v. Gear, 3 How. 132; 14 M. R.
403; Chapman v. Toy Long, 1 M. R. 497.
Case Sufficient to Warrant Injunction.
To reduce the matter to terms it may be stated
as a proposition, supported by the weight of author-
ity, that a temporary injunction, pending suit to
try title, will issue as of right, to restrain the work-
ing of a mine, upon a case whiah shows, after hear-
ing on bill, answer and testimony:
1. That the complainant has the legal title or the
elder and better possessory title ; or at least such showing
of title ns would, if proved as stated in the bill, support
the verdict of a jury in an action of ejectment ; and where
the defense suggested in the answer does not show a recovery
by plaintiff impossible as a proposition of law ; and the affi-
davits or depositions being considered the weight of evi-
dence is with complainant upon the question of fact ; and
that the defendant is in possession taking out ore (which
of itself is a destruction of the estate) in such considerable
quantity as to threaten irreparable injury.
St. Louis Co. v. Montana Co. 58 Fed. 129; Par-
rot Co. v. Heinze, 62 Pac. 818; More v. Massini, 7
M. R. 455; Magnet Co. v. Page, Id. 540; Lockwood v.
Lunsford, Id. 532; Anderson v. Harvey, Id. 291; Er-
hardt v. Boaro, 15 M. R. 447; Anaconda Co. v. Butte
Co. 43 Pac. 924.
2. That the bill was brought without needless delay,
and that the defendant has not been allowed or encouraged
to expend large sums of money upon the property, which it
was in the power of the complainant to prevent.
Ernest v. Vivian, 8 M. R. 205; Klein v. Davis, 27
Pac. 511, and other cases above cited.
INJUNCTION. 329
•
And as matters more particularly addressed to
the discretion of the court are the insolvency of de-
fendant, threats of violence and danger of personal
collisions, the fact of reckless mining without re-
gard to the permanent preservation of the mine, etc.
The above propositions are made upon the sup-
position of an application for injunction after notice,
appearance and answer.
It is an abuse of discretion to enjoin the work-
ing of a vein on the mere chance that it may apex
outside defendant's ground. — Montana Co. v. Boston
Co. 56 Pac. 120.
The court will not enjoin a mere prospect. —
Spotts v. Gilchrist, cited in Morrison's Colo. Dig. p. 9
537. Nor forbid working for exploration purposes.
— St. Louis Co. v. Montana Co. 58 Fed. 129. And a
writ will not be allowed against "working any vein
having its apex in complainant's claim." This would
require defendants to ascertain from w'hat acts they
are enjoined. — Id.
Injuries Other than Mining Ore.
In a proper case an injunction will issue to re-
strain deposit of tailings. — Fuller v. Swan River Co.
16 M. R. 252. Or the destruction of flumes.— Power
v. Klein, 27 Pac. 513. Or to stay the running of an
incline drift to cut off an adversary's tunnel. — Mon-
tana Co. v. Clarlc, 16 M. R. 80. Against assaulting
workmen and threats to blow up the mine. — Ran-
king App. 16 Atl. 82. Against sale of mining stock
on the ground of its fluctuating value. — McLure v.
Sherman, 70 Fed. 190. Refused against cutting tim-
ber on claim where defendant solvent and the tim-
ber of no special need to the mine. — Heaney v. Bulte
Co. 27 Pac. 379. Refused against use of adits under-
lying plaintiff's ground. — Boston Co. v. Montana Co.
59 Pac. 919.
Refused against upper mill where it is using all
possible effort to restrain its tailings. — Otaheite Co.
v. Dean, 102 Fed. 929. It may be allowed against
an option holder in default on his instalments. —
330 INJUNCTION.
*
Williams v. Long, 61 Pac. 1087. A defendant can-
not be enjoined from "entering or trespassing upon"
ground of which he is already in possession. — Id.
Courts will not enjoin in cases charged with
doubt or where, on the plaintiff's showing, final re-
lief would not be granted. — Crescent Go. v. Silver
King Co. 45 Pac. 1093. Though to enjoin they will
not require so strong a case as on final hearing. —
Buskirk v. King, 72 Fed. 22. And it may be allowed
although the proving up is not yet complete. —
Maloney v. King, 64 Pac. 351.
Practice — Answer Not Conclusive.
As a rule, in equity pleadings where the de-
fendant denies the allegations of the bill in terms,
the writ will not issue; but where the bill is sup-
ported by affidavits, and is filed to restrain irrep-
arable mischief by the working of a mine, and the
bill, answer and supporting affidavits being consid-
ered together, the case appears as stated — for the
preservation of the subject matter of controversy
and as a rule limited in its application to mining
cases and others standing on analogous facts, where
the substance and not merely the use is in jeopardy
— the answer is not to be taken as conclusive, if
there remain to the complainant such a showing as
is above stated.
The Venue is usually fixed by the code and com-
monly in the county where the land lies. When not
so fixed, the court having jurisdiction over the person
may enjoin the working of a mine in another county.
— Jennings v. Beale, 27 Atl. 948. But not in another
State. — Lindsley v. Union Co. 66 Pac. 382; Johnstown
Go. v. Butte Co. 70 N. Y. Sup. 257.
Notice.
The usual period of notice to defendant is five
days, but the statute merely requires a notice "in
proportion to the urgency of the case." (Code § 148.)
And where the defendant prays further time to an-
INJUNCTION. 331
swer, it is usual, on slight showing, to grant a re-
straining order or preliminary writ.
In many States the writ of injunction issues at
once upon complainant's showing, and the issue
comes before the court upon motion to dissolve. In
Colorado a reasonable notice is required to be given
before the writ can issue, which allows the de-
fendant opportunity to file his answer; so that the
argument is heard usually upon the original motion
for an injunction and not upon the motion to dis-
solve.
FORM OF INJUNCTION NOTICE.
STATE OF COLORADO, County of Lake: ss.
In the District Court of said county.
Benjamin 8. Phillips, Plaintiff, v. Frank M. Taylor and John
Harvey, Defendants — Injunction.
To the above-named Defendants:
You and each of you will take notice that the said
plaintiff will apply to Hon. Frank Oivers, Judge of said
Court, at the court house, in Red Cliff, County of Eagle, in
said State, at the hour of two o'clock p. m. on the 8th day
of January, A. D. 1903, or as soon thereafter as couns^ can
be heard, when and where you may attend as you see fit — for
a writ of injunction to restrain and enjoin you and each of
you, your agents, attorneys, lessees, sub-lessees, employees,
and all persons under or in privity with you, from working,
mining, extracting or carrying away ore from the Fair De-
ceiver Lode Mining Claim, situate on Carbonate Hill, in Cal-
ifornia Mining District, in said County of Lake, and for
other relief ; and that plaintiff will support the application
by the complaint, affidavits, maps and documentary evidence.
J. Stanley Jones,
Attorney for Plaintiff.
Cripple Creek, January 2, 1903.
Ex Parte Writs to enjoin the working of a mine
are forbidden by statute. — Code § 148. This provision
has been evaded by praying for a writ to forbid re-
moval or sale of the ore, but the granting of such a
writ without notice is in violation of the spirit of
the law.
Practice on Hearing.
The notice having been served, the complainant
presents his bill or complaint to the court, or judge
at chambers. The section of the code allowing a
332 INJUNCTION.
hearing before filing the bill having been greatly
abused, was purposely omitted in the revision of
1887. If the complaint has not been filed or a copy
served with the notice, it is usual to allow defendant
a reasonable time to answer.
A demurrer is rarely interposed to a bill stating
fully the complainant's case. And if interposed and
not sustained, the defendant is not in position to ask
for time to answer over.
The complainant with his bill, and the defendant
with his answer, may file affidavits in support of the
bill and answer respectively, and this is usually
advisable.
The answer being presented, and denying fully
the merits of the bill, the court may either hear the
case on bill and answer with their supporting affi-
davits, or refer the matter to a master or referee to
take testimony.
Consideration of Eights of Lessee losing part of
term by injunction against work. — Stahl v. Van Vleck,
41 N. E. 35.
Working Under View of Court.
Where the defendant is solvent and working in
miner-like manner and the case of plaintiff not free
from doubt, it is not unusual for the court to allow
the defendant to keep at work under conditions of
accounting to the court at monthly intervals, and of
submitting to the inspection of some person on be-
half of plaintiff and paying the net or gross pro-
ceeds into court according to the nature of the case
and the framing of the order.
Injunction After Appeal Taken.
The practice is, where the defendant in the suit
or issue at law obtains judgment, to dissolve the
writ; on final verdict for plaintiff to make the writ
perpetual. — Boston Co. v. Montana Co. 66 Pac. 752.
But the lower court has the power (though it will
only be exercised in a case where the appeal has
great merit or doubt) to continue the injunction
INJUNCTION. 333
after appeal taken by the plaintiff. — Bullion Co. v.
Eureka Co. 12 Pac. 660; Maloney v. King, 71 Pac.
469. And in such case tfre Supreme Court will
not interfere with it. — Sheaffer's App. 100 Pa. St.
379. But the appeal itself does not stay the writ
or the suspension of the writ. — Bullion Co. v.
Eureka Co. 15 M. R. 449. In Erhardt v. Boaro,
the decision giving a new trial to the party who was
plaintiff below, the Supreme Court directed the
Court below to restore the injunction. — 15 M. R. 447-
The appellate Court may enjoin. — Ajax Co. v. Tri-
umph Co. 69 Pac. 523. But will generally leave the
matter to the discretion of the Court below. — Steams-
Roger Co. v. Brown, 114 Fed. 940.
Malicious Prosecution will lie for suing out the
writ without probable cause, and damages, even to
the loss of anticipated profits may be allowed. — New-
ark Co. v. Upson, 40 Oh. St. 17. But it will not lie
where there was probable cause. — Wright v. Ascheim,
17 Pac. 125.
Abuse of the Writ.
Where plaintiff, having obtained injunction
against defendant's mining, entered upon and took
possession of the defendant's works, restoration was
ordered, on motion. — Van Zandt v. Argentine Co. ^8
Fed. 770.
Verification.
Both bill and answer should be verified, and the
answer must be sworn to even where the oath of
defendant is waived by the proper clause to that
effect in the- bill. In the latter case the oath has
not, indeed, the technical effect of a sworn answer,
but the answer has its proper effect as a plea and
the further effect of an affidavit of the defendant.
Bond.
The fact of a bond being filed for the relief of
the defendant, if injured, is a protection to him only
in theory. A bond is seldom available to the ulti-
mate vindication of the right; it is no lien; the
334 INJUNCTION.
measure of damages is vexed and unsettled. — Dona-
hue v. Johnson, 37 Pac. 322; Goosaw Co. v. Carolina
Co. 75 Fed. 860. And the security is rarely accessi-
ble by the time judgment is obtained. In the Federal
Courts the damages may be assessed upon dissolu-
tion of the writ. — Coosaiv Co. v. Farmers Co. 51
Fed. 107.
Mandatory Writ.
Section 159 of the Colorado Code provides that
where possession of a mine is taken by violence or
during intervals of labor, a mandatory writ restor-
ing possession shall issue. This Act, passed orig-
inally in 1874, has been found effective to accomplish
the object intended, and the forcible dispossession of
parties working a mine is now almost unheard of.
It was construed and enforced in Sprague v. Locke,
28 Pac. 142.
A similar Act has been sustained by the Supreme
Court of Dakota.— Cole v. Cady, 3 N. W. 322.
A hearing under this Act goes only to the mat-
ter of the unlawful dispossession of the plaintiff and
the writ leaves the parties to their legal rights on
all other questions as though no such writ had is-
sued.
An injunction mandatory in effect and implying
affirmative acts from the defendant or the surrender
of possession of premises is an unusual sort of re-
lief, to be granted with great caution, but is not with-
out precedent, even as the result of an interlocu-
tory decree, and without the aid of any such statute.
— Cole Co. v. Virginia Co. 7 M. R. 516; Lehigh Co. v.
Trotter, 10 Atl. 608; Horsky v. Helena Co. 33 Pac.
689.
The object of the Act is to allow the court or
judge to grant speedy and practical relief whenever
a party, in peaceable possession, has been ousted by
force or fraud, without regard to any question, ex-
cept the fact and manner of dispossession, and for
this object it has been held valid and not unconsti-
tutional by all or nearly all the judges at nisi prius,
INJUNCTION. 335
and 'has remedied one of the greatest evils ever com-
plained of in the mining counties.
The Federal Court of Colorado District, shortly
after the admission of the State, declined to accept
jurisdiction under this Act. But under the principle
laid down in the later case of Aspen Co. v. Ruclcer,
28 Fed. 222, as to United States Courts exercising
equity powers where conferred by State Statute it is
likely that its jurisdiction in a case with proper
parties would not be at this time questioned.
The practice under the statute is peculiar. As
soon as the complaint is filed the court is directed
ipso facto to grant a temporary writ restraining the
working of the claim. Such mandatory legislative
dictation to the judiciary is of very doubtful validity,
seeming to take away all judicial discretion, but
whatever be its proper construction the other pro-
visions of the section are not hurt by this isolated
provision; they refer merely to the division of time
between the parties for taking testimony and for
a speedy adjudication, and forbid the use of such
a writ in favor of a party who procured his own
possession by violation of the spirit of the Act.
In framing bills under this Act it is not ad-
visable to pray any relief further than the prelim-
inary writ and the restoration of possession.
At least five days' notice of application must be
given; the form on page 331 is sufficient to the words
"Writ of Injunction," after which conclude as fol-
lows:
Having the force and effect of a writ of Restitution,
restoring plaintiff to the possession of the Fatality Lode Min-
ing Claim, situate in Grand Island Mining District, County
of Boulder, and for a Temporary Injunction restraining the
working of said claim in accordance with the terms of Sec-
tion 159 of the Code, and that plaintiff will support the
application by the complaint and affidavits.
Henry C. Charpiot,
Denver } January 2, 1903. Attorney for Plaintiff.
County Courts are forbidden by Colorado Stat-
ute to interfere with the enjoyment, working or pos-
session of a mining claim. — M. A. S. § 7057.
336 INSPECTION AND SURVEY.
INSPECTION. AND SURVEY.
Under section 364 of the Colorado Code (and
see M. A. 8. § 3164, 3176), either party, after suit
is commenced, is allowed the privilege of a survey
and inspection of the premises held by the adverse
party, after demand and refusal, and after certain
awkward and useless notices and affidavits — the sec-
tion cited being probably the most complete instance
of involved and turgid composition ever found on a
statute book.
After analysis of its clauses and throwing out
such portions as must be discarded in order to give
grammatical sense to the paragraph, it seems that
the procedure is as follows:
1. A demand in writing is made for permission
to survey and inspect some certain portion of the
premises.
2. The opposite party has three days in which
to consent to or refuse this demand.
3. A refusal being had and the three days
elapsed, the party presents to the court or judge a
petition under oath in which he must set forth his
interest in the premises and "the reason why it is
necessary" that he should have such survey and in-
spection; stating the demand made and the refusal,
and praying an order for survey and inspection.
4. The court or judge then fixes a time and
place for hearing this petition and orders notice
thereof to be served at least three days before the
hearing4.
5. On the day set the petition is argued and may
be aided or resisted by affidavits.
6. The court or judge, if satisfied that the "facts
stated in the petition are true," makes the order.
Three inspectors are allowed to accompany the
surveyors; an interference with them is made con-
INSPECTION AND SURVEY. 337
tempt and the costs are taxed against the losing
party.
This right of inspection always existed, in
courts of equity at least, and has been frequently ex-
ercised.— Ennor v. Barwell, 12 M. R. 101; Lonsdale
v. Curwen, 7 Id. 693; Thornburah v. Savage Co. Id.
667; Dugdale v. Robertson, 13 M. R. 662; Lewis v.
Marsh, 8 Id. 14; Bennitt v. Whitehouse, Id. 17; Stock-
bridge Co. v. Cone Works, 6 Id. 317.
A statute giving power to compel inspection is
not unconstitutional or oppressive. — St. Louis Co.
v. Montana Co. 23 Pac. 510; 152 U. 8. 160; In re Carr,
35 Pac. 818; Howe's Co. v. Howe's Ass'n, 34 N. Y.
S. 848. And it may be ordered without statute. —
Blue Bird Co. v. Murray, 23 Pac. 1022.
Cost of pumping compelled by court to aid in-
spection, allowed to defendant in suit on injunction
bond. — Tyler Co. v. Last Chance Co. 90 Fed. 16.
Survey Without Suit.
A statute of Montana authorizes a survey by or-
der of Court without institution of suit and it has
been held that this is due process of law. — Montana
Co. v. St. Louis Co. 152 U. 8. 160. But it requires
an express statute to allow of any such unusual pro-
cedure.— State v. Dist. Court, 68 Pac. 570. And the
Colorado Statute cannot be construed to allow it
without a supporting suit already begun. — Peo. v.
De France, 68 Pac. 267. In the latter case from Mon-
tana, 68 Pac. 570, the Court defines the essential lim-
itations and conditions which should be imposed on
petitions of this kind very different from the sweep-
ing language in which they allowed it as a right in
the case which went supra to the U. S. Supreme
Court.— 9 Mont. 300; 23 Pac. 510.
It may be allowed when defendant's secret work-
ings are approaching plaintiff's. — State v. District
Court, 68 Pac. 861.
View by Jury.
By Colorado Act (1893, p. 78) either party may
demand that the jury view the mine. The better
338 STATUTE OF LIMITATIONS.
practice of the Federal Court in the same State is
never to permit it. The arguments in favor of a
jury view in such cases are plausible, but not enough
to offset the inconvenience and often the unfairness
of such view. Barring exceptional instances, unless
by the compulsion of a Statute it ought never to be
allowed. But where such view has been had an ap-
pellate court may consider it conclusive as to what
the jury saw on the ground. — Ormond v. Granite Mt.
Co. 28 Pac. 289.
STATUTE OF LIMITATIONS.
Suit to Annul Patent.
Sec. 8. That suits by the United States to vacate and
annul any patent heretofore issued shall only be brought
within five years from the passage of this act, and suits to
vacate and annul patents hereafter issued shall only be
brought within six years after the date of the issuance of
such patents. * * * — A. O. March 3, 1891, Sup. p. 939.
The above Section is construed in Peabody Co.
v. Gold Hill Co. 106 Fed. 241.
Section 2332 of the United States Statutes ex-
pressly recognizes possession of a mining claim dur-
ing the period fixed by the State Act as sufficient to
establish a right thereto. — 420 Mining Co. v. Bullion
Co. 1 M. R. 114. And a claim may be sued for under
the title so developed.— Glacier Mt. Co. v. Willis, 127
U. S. 472; 17 M. R. — . Such title by continued pos-
session is equivalent to location. — Altoona Co. v. In-
tegral Co. 45 Pac. 1047.
The apparently clear construction of Sec. 2332
is that in ex parte cases an applicant for patent may
rely on his continued possession without producing
abstract of title, and that a party in like position
could adverse on same ground (29 L. D. 401) ; that
in the suit supporting the adverse either could rely
on such possession until defeated by the production
of some superior title. And such is the import of all
STATUTE OP LIMITATIONS. 339
the above citations. But in Montana it has been
held that such possession gave no title, and that the
statute was a mere permission to support patent ap-
plications on possession, in non-contested cases. —
McCowan v. McLay, 40 Pac. 602.
Seven years completes the bar of the Statute in
Colorado, 3 M. A. S. § 2923-2926, and all taxes must
be paid. — Eberville v. Leadville Co. 64 Pac. 200. The
period varies in every state, in Nevada being as low
as two years. — South End Co. v. Tinney, 35 Pac. 89;
38 Pac. 401. And in Montana only one year as to
possessory claims. — Horst v. Shea, 59 Pac. 364.
The possession of the claim must be open and
notorious. — Hamilton v. S. Nevada Co. 15 M. R. 314.
The continuous working of a mine, or even its
working during successive seasons with intervening
seasons during which the mine is left idle, accord-
ing to the custom of the country, is as complete an
adverse possession as could be gained by agricultural
operations or other acts of possession. — Stephenson
v. Wilson, 13 M. R. 408; Wilson v. Henry, 1 M. R.
152, 157; 420 M. Co. v. Bullion Co. 11 M. R. 608; Bell
v. Denson, 56 Ala. 444-
In the case of Harris v. Equator Co. cited p. 317,
it was intimated in the opinion of the court, HAL-
LETT J., that where a party had been in possession
of a mining claim for the period of the statute of
limitations, such fact raised a presumption, at least
against a wrongdoer, that he held under a valid loca-
tion, without proof of the various acts of location,
and such must from the nature of things be the ulti-
mate decision of all courts upon this point. — See
p. 70.
As to the running of the statute where money
is to be paid out of the proceeds of the mines, see
Charter Oak Co. v. Stephens, 15 Pac. 254.
The statute of limitations does not begin to run
while the title is in the United States, except as
between parties both of whom claim by possessory
title only. — King v. Thomas, 12 Pac. 865; Weibold
v. Davis, 14 Pac. 865. Nor until the patent actually
340 BUREAU OF MINES.
issues. — South End Co. v. Tinney, 38 Pac. 401; Clark
v. Barnard, Id. 834.
Adverse possession of water for the statutory
period gives title. — Cox v. dough, 70 Gal. 345; Her-
riman Co. v. Butterfield Co. 57 Pac. 537.
To make adverse possession available there must
be:
1. The occupation or use of the land.
2. Claim and color of title.
The Colorado Supreme Court has ruled that a
party following a patented vein on its strike beyond
its side lines has not sufficient color of title to main-
tain such defense. — Lebanon Co. v. Rogers, 8 Colo.
34. Possession under title bond gives claim and
color after payment of purchase money. — Woods v.
Montevallo Co. 84 Ala. 560; 5 Am. St. R. 393.
In instances the title may ripen without being
initiate on any paper. — Minnesota Co. v. Brasier, 45
Pac. 632; Risch v. Wiseman, 59 Pac. 1111.
As to actions for trespass for coal or ore taken
but the fact not ascertained by plaintiff within the
statutory period — see Lewey v. Frick Co. 31 Atl. 261;
17 M. R. — ; Williams v. Pomeroy Co. 6 M. R. 195.
And as to that class of cases (as in secret under-
mining) where a long interval may elapse before
the resulting injury, see Hall v. Duke of Norfolk, L.
R. (1900), 2 Ch. 493; Sterrett v. Northport Co. 70 Pac.
266.
BUREAU OF MINES— COMMISSIONER—
INSPECTOR.
By Art. 16, Sec. 1, of the Constitution of Colo-
rado, the office of Commissioner of Mines was author-
ized. The appointment to the office was provided for
by Act of 1877, and in 1889 the independent office
of inspector of metalliferous mines was established.
In 1895 a Bureau of Mines was created and the Act
ASSAYS. 341
of 1889 was repealed; and in 1899 the Bureau of
Mines Act was amended.
The Act now provides for the appointment of a
Commissioner, Inspectors and Deputies; the super-
vision and safe guarding of mines and the protection
of miners: makes it the duty of operators to report
accidents and of the Commissioner to investigate the
cause, and provides regulations for the government
of mining, such as the storage of explosives, use of
wooden tamping bars, signals, ladders, ventilation,
covering of shafts, etc.; and provides penalties for
failure to comply with its terms. — Acts 1899, p. 277.
ASSAYS.
Gold, silver and platinum are assayed for the
number of ounces per ton of ore; lead, copper, zinc
and the base metals generally for the per cent, of the
mineral in the ore.
An assay is the test of the value of a specimen
or quantity of ore by the extraction of the amount
of silver, gold or other metal, contained in a minute
but exact fraction, which amount is supposed to be
proportionate to the whole amount found in the
quantity from which the fraction was obtained.
Supposing the assay to be correct, its importance in
determining the quantity of metal in the ore of the
mine, or the value of the mine as deduced from its
ore product, depends on the size of the lot from
which it was obtained, and the manner in which
such lot was selected. What are called specimen
assays are of no value whatever, further than to
show the contents of the identical specimen from
which made, but are often used to deceive persons
ignorant in such matters.
While the assay shows only the contents of that
portion of ore that has been assayed, its importance
lies in its acceptance as indicating the contents of
342 ASSAYS.
other ore, of which the portion assayed was a
"sample."
Between buyer and seller ore is usually sampled
by the former, under supervision of the latter, if
he choose to be present. The sample taken (pulver-
ized) is divided into portions — one for the buyer, one
for the seller, and one to be kept for reference in
case of difference between the other two. After
division, each portion is in itself a sample. Both
buyer and seller have a control assay (assay in du-
plicate) made of their respective samples. The sale
is customarily made on the assay of the buyer, and
the sample of the seller is intended for a check on
the assay of the buyer.
The results of carefully made assays should not
differ more than two oz. silver or two tenths oz. gold
except where the ore contains much free gold, native
silver or silver glance, the particles of which cannot
be reduced to exact evenness, and make assays of
these classes of ore treacherous. In case of dis-
agreement, the third portion of the original sample,
called the umpire, is tested by a third party for a
control, and this assay is final unless there be such
unusual and excessive variation as to suggest the
necessity of resampling.
The intent of an assay is to show the true value
of the ore, and if it is so taken as not to show such
value, proof of assays otherwise taken may be given
in evidence. — Pliipps v. Hully, 15 M. R. 350. Dis-
tinction in results of wet and fire assays. — In re
Puget Co. 96 Fed. 90.
Sales based on assay are not bound by the assay
in case of gross error. — Cox v. Prentice, S M. & S.
344- As to the custom of assay ers, and of which party,
if of either, he is the agent, see this case and Trotter
v. Heckscher, 40 N. J. Eq. 612; 42 Id. 251. As to de-
ductions for moisture see this litigation continued
in LeMgh Co. v. Trotter, 42 N. J. Eq. 661. Sufficient
proof by assay that samples were salted with pow-
dered silver. — Mudsill Co. v. Watrous, 61 Fed. 163.
By assay with litharge, a trace of silver may be
SCHOOL OP MINES. 343
shown in any kind of rock. — Ormond v. Granite Mt.
Co. 28 Pac. 289. An assay of two lots is no proof
of the value of a series of shipments. — Pittsburg
Co. v. GlicTc, 42 Pac. 188.
Mill samples control car samples. — Vietti v. Nes-
Utt, 41 Pac. 151; Fox v. Hale Co. 41 Pac. 308. The
"Assay value" of gold means its universal standard
value and not the value of local gold bullion. — Id.
But a contract to pay 95 per cent, of the silver con-
tents .of the "product of said ore" does not mean 95
per cent, of the assay value of the raw ore. — Silver
Co. v. N. C. 8m. Co. 29 8. E. 940.
An assay is material proof on an issue as to
whether certain rock is mineral bearing. — Healey
v. Rupp, 63 Pac. 319.
SCHOOL OF MINES.
The General Assembly may provide that the Sci-
ence of Mining and Metallurgy be taught in one or
more of the institutions of learning under the pat-
ronage of the State. — Colo. Const. Art. 16, Sec. 4-
Under the above provision the "School of Mines"
at Golden is specially incorporated under M. A. 8.
Chap. 110. and is supported by the State.
Its declared object is to furnish "such instruc-
tion as is provided for in like technical schools of a
high grade," and it is authorized to confer degrees.
— M. A. 8. § 4074.
The course includes four years of two terms
each. These are divided, after the first year, into
Mining and Metallurgical and Electrical Engineer-
ing.
Similar State schools are established at Rolla,
Missouri; Houghton, Michigan; Rapid City, South
Dakota; and Butte, Montana. The University of
California also has a department styled a School of
Mines.
344 LAND OFFICE RULES.
*LAND OFFICE REGULATIONS.
Re-Issued by the General Land Office, July 26,
1901.
**NATURE AND EXTENT OP MINING CLAIMS.
1. Mining claims are of two distinct classes : Lode
claims and placers.
LODE CLAIMS.
2. The status of lode claims located or patented previous
to the 10th day of May, 1872, is not changed with regard
to their extent along the lode or width of surface ; but the
claim is enlarged by sections 2322 and 2328, by investing
the locator, his heirs or assigns, with the right to follow,
upon the conditions stated therein, all veins, lodes, or ledges,
the top or apex of which lies inside of the surface lines
of his claim.
3. It is to be distinctly understood, however, that the law
limits the possessory right to veins, lodes, or ledges, other
than the one named in the original location, to such as
were not adversely claimed on May 10, 1812, and that where
such other vein or ledge was so adversely claimed at that
date the right of the party so adversely claiming is in no
way impaired by the provisions of the Revised Statutes.
4. From and after the 10th May, 1872, any person who is
a citizen of the United States, or who has declared his in- •
tention to become a citizen, may locate, record, and hold a
mining claim of fifteen hundred linear feet along the course
of any mineral vein or lode subject to location ; or an as-
sociation of persons, severally qualified as above, may make
joint location of such claim of fifteen hundred feet, but in
no event can a location of a vein or lode made after the
10th day of May, 1872, exceed fifteen hundred feet along
the course thereof, whatever may be the number of per-
sons composing the association.
*NOTE. — Prior to 1895 the surveyors general had each a
separate set of rules, based upon the Land Office Rules, reg-
ulating work in their departments. In that year the Com-
missioner issued a Manual of Instructions which superseded
all local circulars. By the last revision of the Regulations,
the Manual of Instructions is made a part of the Regula-
tions.
**In the circular these instructions are preceded by a
copy of the act of Congress.
LAND OFFICE RULES. 345
5. Width — Surface Ground. — With regard to the extent
of surface ground adjoining a vein or lode, and claimed for
the convenient working thereof, the Revised Statutes provide
that the lateral extent of locations of veins or lodes made
after May 10, 1872, shall in no case exceed three hundred
feet on each side o'f the middle of the vein at the surface,
and that no such surface rights shall be limited by any
mining regulations to less than twenty-five feet on each
side of the middle of the vein at the surface, except where
adverse rights existing on the 10th May, 1872, may
render such limitation necessary ; the end lines of such
claims to be in all cases parallel to each other. Said lateral
measurements can not extend beyond three hundred feet on
either side of the middle of the vein at the surface, or such
distance as is allowed by local laws. For example : 400
feet can not be taken on one side and 200 feet on the other.
If, however, 300 feet on each side are allowed, and by rea-
son of prior claims but 100 feet can be taken on one side,
the locator will not be restricted to less th,an 300 feet on
the other side ; and when the locator does not determine
by exploration where the middle of the vein at the surface
is, his discovery shaft must be assumed to mark such point.
6. Size of Claim. — By the foregoing it will be perceived
that no lode claim located after the 10th May, 1872, can
exceed a parallelogram fifteen hundred feet in length by
six hundred feet in width, but whether surface ground of
that width can be taken depends upon the local -regulations
or State or Territorial laws in force in the several mining
districts ; and that no such local regulations or State or
Territorial laws shall limit a vein or lode claim to less
than fifteen hundred feet along the course thereof, whether
the location is made by one or more persons, nor can sur-
face rights be limited to less than fifty feet in width unless
adverse claims existing on the 10th day of May, 1872,
render such lateral limitation necessary.
7. Location Certificate. — Locators can not exercise too
much care in defining their locations at the outset, inasmuch
as the law requires that all records of mining locations
made subsequent to May 10, 1872, shall contain the name
or names of the locators, the date of the location, and such
a description of the claim or claims located, by reference
to some natural object or permanent monument, as will
identify the claim.
8. No lode claim shall "be located until after the discovery
of a vein or lode within the limits of the claim, the object
of which provision is evidently to prevent the appropriation
of presumed mineral ground for speculative purposes, to
the exclusion of bona fide prospectors, before sufficient work
has been done to determine whether a vein or lode really
exists.
9. Discovery — Ties — Description. — The claimant should,
therefore, prior to locating his claim, unless the vein can
be traced upon the surface, sink a shaft or run a tunnel
346 LAND OFFICE RULES.
or drift to a sufficient depth therein to discover and de-
velop a mineral-bearing vein, lode, or crevice ; should de-
termine, if possible, the general course of such vein in either
direction from the point of discovery, by which direction
he will be governed in marking the boundaries of his claim
on the surface. His location notice should give the course
and distance as nearly as practicable from the discovery
shaft on the claim to some permanent, well-known points
or objects, such, for instance, as stone monuments, blazed
trees, the confluence of streams, point of intersection of
well-known gulches, ravines, or roads, prominent buttes,
hills, etc., which may be in the immediate vicinity, and
which will serve to perpetuate and fix the locus of the
claim and render it susceptible of identification from the
description thereof given in the record of locations in the
district, and should be duly recorded.
10. Adjoining Claims — Staking — Location Notice, — In addi-
tion to the foregoing data, the claimant should state the
names of adjoining claims, or, if none adjoin, the relative
positions of the nearest claims ; should drive a post or erect
a monument of stones at each corner of his surface ground,
and at the point of discovery or discovery shaft should
fix a post, stake, or board, upon which should be designated
the name of the lode, the name or names of the locators,
the number of feet claimed, and in which direction from
the point of discovery ; it being essential that the location
notice filed for record, in addition to the foregoing descrip-
tion, should state whether the entire claim of fifteen hun-
dred feet is taken on one side of the point of discovery,
or whether it is partly upon one and partly upon the other
side therof, and in the latter case, how many feet are
claimed upon each side of such discovery point.
11. The location notice must be filed for record in all re-
spects as required by the State or Territorial laws and
local rules and regulations, if there be any.
12. Annual Labor. — In order to hold the possessory title
to a mining claim located prior to May 10, 1872, the law
requires that ten dollars shall be expended annually in labor
or improvements for each one hundred feet in length along
the vein or lode. In order to hold the possessory right to
a location made since May 10, 1872, not less than one hun-
dred dollars' worth of labor must be performed or improve-
ments made thereon annually. Under the provisions of the
act of Congress approved January 22, 1880, the first an-
nual expenditure becomes due and must be performed during
the calendar year succeeding that in which the location was
made. Where a number of claims are held in common, the
aggregate expenditure that would be necessary to hold all
the claims, may be made upon any one claim.
13. Failure to make the expenditure or perform the labor
required upon a location made before or since May 10, 1872,
will subject a claim to relocation, unless the original lo-
LAND OFFICE RULES. 347
cator, his heirs, assigns, or legal representatives have re-
sumed work after such failure and before relocation.
14. Annual expenditure is not required subsequent to entry,
the date of issuing the patent certificate being the date
contemplated by statute.
15. Forfeiture of Coowners — Interest. — Upon the failure
of any one of several coowners to contribute his proportion
of the required expenditures, the coowners, who have per-
formed the labor or made the improvements as required,
may, at the expiration of the year, give such delinquent
coowner personal notice in writing, or notice by publication
in the newspaper published nearest the claim for at least
once a week for ninety days ; and if upon the expiration
of ninety days after such notice in writing, or upon the ex-
piration of one hundred and eighty days after the first
newspaper publication of notice, the delinquent coowner
shall have failed to contribute his proportion to meet such
expenditures or improvements, his interest in the claim
by law passes to his coowners who have made the expend-
itures or improvements as aforesaid. Where a claimant
alleges ownership of a forfeited interest under the foregoing
provision, the sworn statement of the publisher as to the
facts of publication, giving dates and a printed copy of the
notice published, should be furnished, and the claimant must
swear that the delinquent coowner failed to contribute his
proper proportion within the period fixed by the statute.
TUNNELS.
16. The effect of section 2323, Revised Statutes, is to give
the proprietors of a mining tunnel run in good faith the
possessory right to fifteen hundred feet of any blind lodes
cut, discovered, or intersected by such tunnel, which were
not previously known to exist, within three thousand feet
from the face or point of commencement of such tunnel,
and to prohibit other parties, after the commencement of
the tunnel, from prospecting for and making locations of
lodes on the line thereof and within said distance of three
thousand feet, unless such lodes appear upon the surface
or were previously known to exist. The term "face," as
used in said section, is construed and held to mean the first
working face formed in the tunnel, and to signify the point
at which the tunnel actually enters cover ; it being from
this point that the three thousand feet are to be counted
upon which prospecting is prohibited as aforesaid.
17. Tunnel Notice— Staking.— To avail themselves of the
benefits of this provision of law, the proprietors of a min-
ing tunnel will be required, at the time they enter coyer
as aforesaid, to give proper notice of their tunnel location
by erecting a substantial post, board, or monument at the
face or point of commencement thereof, upon which should
be posted a good and sufficient notice, giving the names of
the parties or company claiming the tunnel right ; the actual
or proposed course or direction of the tunnel ; the height
348 LAND OFFICE RULES.
and width thereof, and the course and distance from such
face or point of commencement to some permanent well-
known objects in the vicinity by which to fix and determine
the locus in manner heretofore set forth applicable to lo-
cations of veins or lodes, and at the time of posting such
notice they shall, in order that miners or prospectors may
be enabled to determine whether or not they are within
the lines of the tunnel, establish the boundary lines thereof,
by stakes or monuments placed along such lines at proper
intervals, to the terminus of the three thousand feet from
the face or point of commencement of the tunnel, and the
lines so marked will define and govern as to the specific
boundaries within which prospecting for lodes not previ-
ously known to exist is prohibited while work on the tun-
nel is being prosecuted with reasonable diligence.
18, Record of Tunnel, — At the time of posting notice and
marking out the lines of the tunnel as aforesaid, a full and
correct copy of such notice of location defining the tunnel
claim must be filed for record with the mining recorder
of the district, to which notice must be attached the sworn
statement or declaration of the owners, claimants, or pro-
jectors of such tunnel, setting forth the facts in the case ;
stating the amount expended by themselves and their pred-
ecessors in interest in prosecuting work thereon ; the extent
of the work performed, and that it is boner fide their inten-
tion to prosecute work on the tunnel so located and de-
scribed with reasonable diligence for the development of a
vein or lode, or for the discovery of mines, or both, as the
case may be. This notice of location must be duly recorded,
and, with the sworn statement attached, kept on the re-
corder's files for future reference.
PLACEE CLAIMS.*
19. But one discovery of mineral is required to support a
placer location, whether it be of twenty acres by an indi-
vidual, or of one hundred and sixty acres or less by an
association of persons.
20. Building Stone — School Lands, — The act of August 4,
1892, extends the mineral-land laws so as to bring lands
chiefly valuable for building stone within the provisions of
said law by authorizing a placer entry of such lands. Reg-
isters and receivers should make a reference to said act on
the entry papers in the case of all placer entries made for
lands containing stone chiefly valuable for building purposes.
Lands reserved for the benefit of public schools or donated
to any State are not subject to entry under said act.
21, Petroleum— Oils.— The act of February 11, 1897,
provides for the location and entry of public lands chiefly
valuable for petroleum or other mineral oils, and entries
of that nature made prior to the passage of said act are
to be considered as though made thereunder.
*See, also, Regulations 58-60.
LAND OFFICE RULES. 349
22. Ten-Acre Lots— No Survey,— By section 2330 author-
ity is given for the subdivision of forty-acre legal subdi-
visions into ten-acre lots, which is intended for the greater
convenience of miners in segregating their claims both from
one another and from intervening agricultural lands. It
is held, therefore, that under a proper construction of the
law these ten-acre lots in mining districts should be con-
sidered and dealt with, to all intents and purposes, as
legal subdivisions, and that an applicant having a claim
which conforms to one or more of these ten-acre lots, con-
tiguous in case of two or more lots, may make entry thereof,
after the usual proceedings, without further survey or
plat.
23. Idem — Mode of Entry. — In cases of this kind, how-
ever, the notice given of the application must be very spe-
cific and accurate in description, and as the forty-acre
tracts may be subdivided into ten-acre lots, either in the
form of squares of ten by ten chains, or, if parallelograms,
five by twenty chains, so long as the lines are parallel and
at right angles with the lines of the public surveys, it will
be necessary that the notice and application state specifically
what ten-acre lots are sought to be patented in addition to
the other data required in the notice.
24. Description by Legal Subdivisions. — Where the ten-
acre subdivision is in the form of a square it may be de-
scribed, for instance, as the "SE. % of the SW. *4 of the
NW. %," or, if in the form of a parallelogram as aforesaid,
it may be described as the "W. % of the W. y2 of the SW.
i/4 of the NW. % (or the N. y2 of the S. % of the NE.
14 of the SE. %) of section , township , range
," as the case may be ; but, in addition to this de-
scription of the land, the notice must give all the other
data that is required in mineral application, by which
parties may be put on inquiry as to the premises sought
to be patented. The proofs submitted with applications
for claims of this kind must show clearly the character and
the extent of the improvements upon the premises.
25. The proof of improvements must show their value to be
not less than five hundred dollars and that they were made
by the applicant for patent or his grantors. This proof
should consist of the affidavit of two or more disinterested
witnesses. The annual expenditure to the amount of $100,
required by section 2324, Revised Statutes, must be made
upon placer claims as well as lode claims.
26. Lode in Placer. — Applicants for patent to a placer
claim, who are also in possession of a known vein or lode
included therein, must state in their application that the
placer includes such vein or lode. The published and posted
notices must also include such statement. If veins or lodes
lying within a placer location are owned by other parties,
the fact should be distinctly stated in the application for
patent, and in all the notices. But in all cases, whether the
lode is claimed or excluded, it must be surveyed and marked
350 LAND OFFICE RULES.
upon the plat, the field notes and plat giving the area of
the lode claim or claims and the area of the placer separately.
An application which omits to claim such known vein or
lode must be construed as a conclusive declaration that the
applicant 1ms no right of possession to the vein or lode.
Where there is no known lode or vein, the fact must appear
by the affidavit of two or more witnesses.
27. Size of Claim,— By section 2330 it is declared that
no location of a placer claim, made after July 9, 1870, shall
exceed one hundred and sixty acres for any one person or
association of persons, which location shall conform to the
United States surveys.
28. Conform to Public Survey.— Section 2331 provides
that all placer-mining claims located after May 10, 1872,
shall conform as nearly as practicable with the United
States system of public-land surveys and the rectangular
subdivisions of such surveys, and such locations shall not
include more than twenty acres for each individual claim-
ant.
29. Location by an Association, — The foregoing provisions
of law are construed to mean that after the 9th day of
July, 1870, no location of a placer claim can be made to
exceed one hundred and sixty acres, whatever may be the
number of locators associated together, or whatever the local
regulations of the district may allow ; and that from and
after May 10, 1872, no location can exceed twenty acres for
each individual participating therein ; that is, a location by
two persons can not exceed forty acres, and one by three
persons can not exceed sixty acres.
30. How Located. — The regulations hereinbefore given
as to the manner of marking locations on the ground, and
placing the same on record, must be observed in the case of
placer locations so far as the same are applicable, the law
requiring, however, that all placer mining claims located
after May 10, 1872, shall conform as near as practicable with
the United States system of public land surveys and the
rectangular subdivisions of such surveys, whether the loca-
tions are upon surveyed or unsurveyed lauds.
REGULATIONS UNDER SALINE ACT.
31. Only One Location Allowed to Same Person, — Under the
act approved January 31, 1901, extending the mining laws
to saline lands, the provisions of the law relating to placer-
mining claims are extended to all States and Territories and
the district of Alaska, so as to permit the location and pur-
chase thereunder of all unoccupied public lands containing
salt springs, or deposits of salt in any form, and chiefly
valuable therefor, with the proviso, "That the same person
shall not locate or enter more than one claim hereunder."
32. Rights obtained by location under the placer-mining
laws are assignable, and the assignee may make the entry
in his own name ; so, under this act a person holding as
assignee may make entry in his own name : Provided, He
LAND OFFICE RULES. 351
has not held under this act, at any time, either as locator
or entryman, any other lands ; his right is exhausted by
having held under this act any particular tract, either as
locator or entryman, either as an individual or as a mem-
ber of an association. It follows, therefore, that no ap-
plication for patent or entry, made under this act, shall
embrace more than one single location.
33. Affidavit to Location Certificate. — In order that the
conditions imposed by the proviso, as set forth in the above
paragraph, may duly appear, the notice of location pre-
sented for record and the application for patent must each
contain a specific statement under oath by each person whose
name appears therein that he never has, either as an indi-
vidual or as a member of an association, located or entered
any other lands under the provisions of this act. Assign-
ments made by persons who are not severally qualified as
herein stated will not be recognized.
PROCEDURE TO OBTAIN PATENT TO MINERAL
LANDS.
LODE CLAIMS.
34. Official Survey. — The claimant is required, in the
first place, to have a correct survey of his claim made under
authority of the surveyor-general of the State or Territory
in which the claim lies, such survey to show with accuracy
the exterior surface boundaries of the claim, which bound-
aries are required to be distinctly marked by monuments on
the ground. Four plats and one copy of the original field
notes in each case will be prepared by the surveyor-general ;
one plat and the original field notes to be retained in the
office of the surveyor-general, one copy of the plat to be
given the claimant for posting upon the claim, one plat and
a copy of the field notes to be given the claimant for filing
with the proper register, to be finally transmitted by that
officer, with other papers in the case, to this office, and one
plat to be sent by the surveyor-general to the register of
the proper land district, to be retained on his files for future
reference. As there is no resident surveyor-general for the
State of Arkansas, applications for the survey of mineral
claims in said State should be made to the Commissioner of
this office, who, under the law, is ex ojftcio the U. S. surveyor-
general.
35. Idem — None Before Record. — The survey and plat of
mineral claims required to be filed in the proper land office
with application for patent must be made subsequent to the
recording of the location of the claim (if the laws of the
State or Territory or the regulations of the mining district
require the notice of location to be recorded), and when
the original location is made by survey of a United States
deputy surveyor such location survey can not be substituted
for that required by the statute, as above indicated.
36. Numbering Surveys — Ties to Government Corners. — The
surveyors-general should designate all surveyed mineral
352 LAND OFFICE RULES.
«
claims by a progressive series of numbers, beginning with
survey No. 37, irrespective as to whether they are situated
on surveyed or unsurveyed lands, the claim to be so desig-
nated at date of issuing the order therefor, in addition to
the local designation of the claim ; it being required in all
cases that the plat and field notes of the survey of a claim
must, in addition to the reference to permanent objects
in the neighborhood, describe the locus of the claim with
reference to the lines of public surveys by a line connect-
ing a corner of the claim with the nearest public corner of
the United States surveys, unless such claim be on unsur-
veyed lands at a distance of more than two miles from such
public corner, in which latter case it should be connected
with a United States mineral monument. Such connecting
line must not be more than tivo miles in length, and should
be measured on the ground direct betwreen the points, or
calculated from actually surveyed traverse lines if the na-
ture of the country should not permit direct measurement.
If a regularly established survey corner is within two miles
of a claim situated on unsurveyed lands, the connection
should be made with such corner in preference to a connec-
tion with a United States mineral monument. The con-
necting line or traverse line must be surveyed by the deputy
mineral surveyor at the time of his making the particular
survey, and be made a part thereof.
37, Diagram of Claim on Surveyed Land. — Upon the ap-
proval of the survey of a mining claim made upon surveyed
lands the surveyor-general will prepare and transmit to the
local land office and to this office a diagram made upon the
usual drawing paper township blank, showing the portions
of legal 40-acre subdivisions made fractional by reason
of the mineral survey, designating each of such portions
by the proper lot number, beginning with No. 1 in each
section, and giving the area of each lot.
38, The following particulars should be observed in the sur-
vey of every mining claim :
(1) The exterior boundaries of the claim, the number
of feet claimed along the vein, and, as nearly as can be
ascertained, the direction of the vein, and the number of
feet claimed on the vein in each direction from the point
of discovery or other well-defined place on the claim should
be represented on the plat of survey and in the field notes.
(2) The intersection of the lines of the survey with
the lines of conflicting prior surveys should be noted in the
field notes and represented upon the plat.
(3) Conflicts with unsurveyed claims, where the ap-
plicant for survey does not claim the area in conflict, should
be shown by actual survey.
(4) The total area of the claim embraced by the ex-
terior boundaries should be stated, and also the area in con-
flict with each intersecting survey, substantially as follows ;
LAND OFFICE RULES. 353
Acres.
Total area of claim 10.50
Area in conflict with Survey No. 302... 1.56
Area in conflict with Survey No. 948. . . 2.33
Area in conflict with Mountain Maid
lode mining claim, unsurveyed 1.48
It does not follow that because mining surveys are re-
quired to exhibit all conflicts with prior surveys the areas
of conflict are to be excluded. The field notes and plat are
made a part of the application for patent, and care should
be taken that the description does not inadvertently exclude
portions intended to be retained. The application for patent
should state the portions to be excluded in express terms.
39. The claimant is then required to post a copy of the plat
of such survey in a conspicuous place upon the claim, to-
gether with notice of his intention to apply for a patent
therefor, which notice will give the date of posting, the
name of the claimant, the name of the claim, the number
of the survey, the mining district and county, and the
names of adjoining and conflicting claims as shown by the
plat of survey. Too much care can not be exercised in the
preparation of this notice, inasmuch as the data therein are
to be repeated in the other notices required by the statute,
and upon the accuracy and completeness of these notices
will depend, in a great measure, the regularity and validity
of the proceedings for patent.
40. Proof of Posting,— After posting the said plat and
notice upon the premises, the claimant will file with the
proper register and receiver a copy of such plat and the
field notes of survey of the claim, accompanied by the affi-
davit of at least two credible witnesses that such plat and
notice are posted conspicuously upon the claim, giving the
date and place of such posting ; a copy of the notice so posted
to be attached to and form a part of said affidavit.
41. Application for Patent, — Accompanying the field
notes so filed must be the sworn statement of the claimant
that he has the possessory right to the premises therein
described, in virtue of a compliance by himself (and by his
grantors, if he claims by purchase) with the mining rules,
regulations, and customs of the mining district, State, or
Territory in which the claim lies, and with the mining laws
of Congress ; such sworn statement to narrate briefly, but
as clearly as possible, tfce facts constituting such compli-
ance, the origin of his possession, and the basis of his claim
to a patent.
42. Abstract of Title,— This sworn statement must be
supported by a copy of the location notice, certified by the
officer in charge of the records where the same is recorded,
and where the applicant for patent claims the interests
of others associated with him in making the location, or
only as purchaser, in addition to the copy of the location
notice, must be furnished a complete abstract of title as
12
354 LAND OFFICE RULES.
shown by the record in the office where the transfers are
by law required to be recorded, certified to by the officer
in charge of the record under his official seal. The officer
should also certify that no conveyances affecting the title
to the claim in question appear of record other than those
set forth in the abstract, which abstract shall be brought
down to the date of the application for patent. Where the
applicant claims as sole locator and does not furnish an
abstract of title, his affidavit should be furnished to the
effect that he has disposed of no interest in the land lo-
cated.
43. Lost Records, — In the event of the mining records
in any case having been destroyed by fire or otherwise
lost, affidavit of the fact should be made, and secondary evi-
dence of possessory title will be received, which may con-
sist of the affidavit of the claimant, supported by those of
any other parties cognizant of the facts relative to his
location, occupancy, possession, improvements, &c. ; and in
such case of lost records, any deeds, certificates of location
or purchase, or other evidence which may be in the claim-
ant's possession and tend to establish his claim, should be
filed.
44. Two Applications for Same Land. — Before receiving
and filing a mineral application for patent, local officers will
be particular to see that it includes no land which is em-
braced in a prior or pending application for patent or entry,
or for any lands embraced in a railroad selection, or for
which publication is pending or has been made by any other
claimants, and if, in their opinion, after investigation, it
should appear that a mineral application should not, for
these or other reasons, be accepted and filed, they should
formally reject the same, giving the reasons therefor, and
allow the applicant thirty days for appeal to this office
under the Rules of Practice.
45. Publication — Publisher's Agreement. — Upon the receipt
of these papers, if no reason appears for rejecting the ap-
plication, the register will, at the expense of the claimant
(who must furnish the agreement of the publisher to hold
applicant for patent alone responsible for charges of pub-
lication), publish a notice of such application for the period
of sixty days in a newspaper published nearest to the
claim, and will post a copy of such notice in his office for
the same period. When the notice is published in a iveekly
newspaper, nine consecutive insertions are necessary; when
in a daily newspaper, the notice must appear in each issue
for sixty-one consecutive issues. In both cases the first
day of issue must be excluded in estimating the period of
sixty days.
46. The notices so published and posted must embrace all
the data given in the notice posted upon the claim. In
addition to such data the published notice must further
indicate the locus of the claim by giving the connecting
line, as shown by the field notes and plat, between a corner
LAND OFFICE RULES. 355
of the claim and a United States mineral monument or a
corner of the public survey, and thence the boundaries of
the claim by courses and distances.
47. The register shall publish the notice of application for
patent in a paper of established character and general cir-
culation, to be by him designated as being the newspaper
published nearest the land.
48. Surveyor-General's Certificate of $500 Improvements. —
The claimant at the time of filing the application for patent,
or at any time within the sixty days of publication, is required
to file with the register, a certificate of the surveyor-general
that not less than five hundred dollars' worth of labor has
been expended or improvements made, by the applicant or his
grantors, upon each location embraced in the application,
or if the application embraces several locations held in com-
mon, that an amount equal to five hundred dollars for each
location, has been so expended upon, and for the benefit of,
the entire group ; that the plat filed by the claimant is cor-
rect ; that the field notes of the survey, as filed, furnish
such an accurate description of the claim as will if incor-
porated in a patent serve to fully identify the premises and
that such reference is made therein to natural objects or
permanent monuments as will perpetuate and fix the locus
thereof : Provided, That as to all applications for patent
made and passed to entry before July 1, 1898, or which
are by protests or adverse claims prevented from being
passed to entry before that time, where the application em-
braces several locations held in common, proof of an expend-
iture of five hundred dollars upon the group will be sufficient
and an expenditure of that amount need not be shown to
have been made upon, or for the benefit of, each location
embraced in the application.
49. The surveyor-general may derive his information upon
which to base his certificate as to the value of labor ex-
pended or improvements made from his deputy who makes
the actual survey and examination upon the premises, and
such deputy should specify with particularity and full de-
tail the character and extent of such improvements.
50. It will be the more convenient way to have this certifi-
cate indorsed by the surveyor-general, both upon the plat
and field notes of survey filed by the claimant as aforesaid.
51. Proof of Publication and of Plat Remaining Posted. —
After the sixty days' period of newspaper publication has
expired, the claimant will furnish from the office of pub-
lication a sworn statement that the notice was published
for the statutory period, giving the first and last day of
such publication, and his own affidavit showing that the
plat and notice aforesaid remained conspicuously posted
upon the claim sought to be patented during said sixty days'
publication, giving the dates.
52. Entry — Price — Proof of Sums Paid, — Upon the filing
of this affidavit the register will, if no adverse claim was
356 LAND OFFICE RULES.
filed in his office during the period of publication, permit
the claimant to pay for the land according to the area
given in the plat and field notes of survey aforesaid, at the
rate of five dollars for each acre and five dollars for each
fractional part of an acre, except as otherwise provided by
law, the receiver issuing the usual duplicate receipt therefor.
The claimant will also make a sworn statement of all
charges and fees paid by him for publication and surveys,
together with all fees and money paid the register and re-
ceiver of the land office, after which the complete record
will be forwarded to the Commissioner of the General Land
Office and a patent issued thereon if found regular.
53. Protest Prior to Patent. — At any time prior to the
issuance of patent, protest may be filed against the patent-
ing of the claim as applied for, upon any ground tending to
show that the applicant has failed to comply with the law
in a matter which would avoid the claim. Such protest can
not, however, be made the means of preserving a surface
conflict lost by failure to adverse or lost by the judgment
of the court in an adverse suit. One holding a present joint
interest in a mineral location included in an application for
patent who is excluded from the application, so that his
interest would not be protected by the issue of patent thereon,
may protest against the issuance of a patent as applied for,
setting forth in such protest the nature and extent of his
interest in such location, and such a protestant will be
deemed a party in interest entitled to appeal. This results
from the holding that a coowner excluded from an applica-
tion for patent does not have an "adverse" claim within the
meaning of sections 2325 and 2326 of the Revised Statutes.
See Turner v. Sawyer, 150 U. 8. 578-586.
54. Any party applying for patent as trustee must disclose
fully the natur* of the trust and the name of the cestui que
trust; and such trustee, as well as the beneficiaries, must
furnish satisfactory proof of citizenship ; and the names of
beneficiaries, as well as that of the trustee, must be in-
serted in the final certificate of entry.
55. The annual expenditure of one hundred dollars in labor
or improvements on a mining claim, required by section 2324
of the Revised Statutes, is solely a matter between rival or
adverse claimants to the same mineral land, and goes only
to the right of possession, the determination of which is
committed exclusively to the courts.
56. Failure to Prosecute Application Diligently. — The fail-
ure of an applicant for patent to a mining claim to prose-
cute his application to completion, by filing the necessary
proofs and making payment for the land, within a reason-
able time after the expiration of the period of publication of
notice of the application, or after the termination of adverse
proceedings in the courts, constitutes a waiver by the ap-
plicant of all rights obtained by the earlier proceedings
upon the application.
LAND OFFICE RULES. 357
57. Idem — Prosecution Delayed by Adverse. — The proceed-
ings necessary to the completion of an application for patent
to a mining claim, against which an adverse claim or pro-
test has been filed, if taken by the applicant at the first
opportunity afforded therefor under the law and depart-
mental practice, will be as effective as if taken at the date
when, but for the adverse claim or protest, the proceedings
on the application could have been completed.
PLACER CLAIMS.*
58. On Surveyed Lands. — The proceedings to obtain pat-
ents for placer claims, including all forms of mineral de-
posits excepting veins of quartz or other rock in place, are
similar to- the proceedings prescribed for obtaining patents
for vein or lode claims ; but where a placer claim shall be
upon surveyed lands, and conforms to legal subdivisions,
no further survey or plat will be required. Where placer
claims can not be conformed to legal subdivisions, survey
and plat shall be made as on unsurveyed lands.
59. Two Dollars and Fifty Cents Per Acre. — The proceed-
ings for obtaining patents for veins or lodes having already
been fully given, it will not be necessary to repeat them
here, it being thought that careful attention thereto by ap-
plicants and the local officers will enable them to act under-
standingly in the matter, and make such slight modifications
in the notice, or otherwise, as may be necessary in view
of the different nature of the two classes of claims ; placer
claims being fixed, however, at two dollars and fifty cents per
acre, or fractional part of an acre.
60. Classification of the Land — Descriptive Report. — In
placer applications for patent care must be exercised to de-
termine the proper classification of the lands claimed. To
this end the clearest evidence of which the case is capable
should be presented.
(1) If the claim be all placer ground, that fact must
be stated in the application and corroborated by accompany-
ing proofs ; if of mixed placers and lodes, it should be so set
out, with a description of all known lodes situated within
the boundaries of the claim. A specific declaration, such
as is required by section 2333, Revised Statutes, must be
furnished as to each lode intended to be claimed. All other
known lodes are, by the silence of the applicant, excluded
by law from all claim by him, of whatsoever nature, pos-
sessory or otherwise.
(2) Deputy surveyors shall, at the expense of the
parties, make full examination of all placer claims surveyed
by them, and duly note the facts as specified in the law,
stating the quality and composition of the soil, the kind
and amount of timber and other vegetation, the locus and
size of streams, and such other matters as may appear upon
the surface of the claim. This examination should include
*See, also, Regulations 19-30.
358 LAND OFFICE RULES.
the character and extent of all surface and underground
workings, whether placer or lode, for mining purposes.
(3) In addition to these data, which the law requires
to be shown in all cases, the deputy should report with ref-%
erence to the proximity of centers of trade or residence;'
also of well-known systems of lode deposit or of individual
lodes. He should also report as to the use or adaptability
of the claim for placer mining ; whether water has been
brought upon it in sufficient quantity to mine the same,
or whether it can be procured for that purpose ; and, finally,
what works or expenditures have been made by the claimant
or his grantors for the development of the claim, and their
situation and location with respect to the same as applied
for.
(4) This examination should be reported by the deputy
under oath to the surveyor-general, and duly corroborated ;
and a copy of the same should be furnished with the appli-
cation for patent to the claim, constituting a part thereof,
and included in the oath of the applicant.
(5) Applications awaiting entry, whether published
or not, must be made to conform to these regulations, with
respect to examination as to the character of the land.
Entries already made will be suspended for such additional
proofs as may be deemed necessary in each case.
MILL SITES.
61, Land entered as a mill site must be shown to be non-
mineral. Mill sites are simply auxiliary to the working
of mineral claims, and as section 2337, which provides for
the patenting of mill sites, is embraced in the chapter of
the Revised Statutes relating to mineral lands, they are
therefore included in this circular.
62, Noncontiguous to Lode — Independent Application, — To
avail themselves of this provision of law parties holding
the possessory right to a vein or lode, and to a piece of
nonmineral land not contiguous thereto for mining or mill-
ing purposes, not exceeding the quantity allowed for such
purpose by section 2337, or prior laws, under which the
land' was appropriated, the proprietors of such vein or lode
may file in the proper land office their application for a
patent, under oath, in manner already set forth herein, which
application, together with the plat and field notes, may in-
clude, embrace, and describe, in addition to the vein or
lode, such noncontiguous mill site, and after due proceedings
as to notice, etc., a patent will be issued conveying the same
as one claim. The owner of a patented lode may, by an
independent application, secure a mill site if good faith is
manifest in its use or occupation in connection with the
lode and no adverse claim exists.
63, Lots "A" and "B," — Where the original survey in-
cludes a lode claim and also a mill site the lode claim should
be described in the plat and field notes as "Sur. No. 37, A,"
and the mill site as "Sur. No. 37, B," or whatever may be
LAND OFFICE RULES. 359
its appropriate numerical designation ; the course and dis-
tance from a corner of the mill site to a corner of the lode
claim to be invariably given in such plat and field notes,
and a copy of the plat and notice of application for patent
must he conspicuously posted upon the mill site as well
as upon the vein or lode for the statutory period of sixty
days. In making the entry no separate receipt or certifi-
cate need be issued for the mill site, but the whole area
of both lode and mill site will be embraced in one entry,
the price being five dollars for each acre and fractional
part of an acre embraced by such lode and mill-site claim.
64. Mill Site Without Lode. — In case the owner of a
quartz mill or reduction works is not the owner or claimant
of a vein or lode the law permits him to make application
therefor in the same manner prescribed herein for mining
claims, and after due notice and proceedings, in the absence
of a valid adverse filing, to enter and receive a patent for
his mill site at said price per acre.
65. In every case there must he satisfactory proof that the
land claimed as a mill site is not mineral in character,
which proof may, where the matter is unquestioned, consist
of the sworn statement of two of more persons capable, from
acquaintance with the land, to testify understandingly.
CITIZENSHIP.
66. The proof necessary to establish the citizenship of ap-
plicants for mining patents must be made in the following
manner : In case of an incorporated company, a certified
copy of their charter or 'certificate of incorporation must be
filed. In case of an association of persons unincorporated,
the affidavit of their duly authorized agent, made upon his
own knowledge or upon information and belief, setting
forth the residence of each person forming such association,
must be submtted. This affidavit must be accompanied by
a power of attorney from the parties forming such associ-
ation, authorizing the person who makes the affidavit of
citizenship to act for them in the matter of their applica-
tion for patent.
67. In case of an individual or an association of individuals
who do not appear by their duly authorized agent, you will
require the affidavit of each applicant, showing whether he
is a native or naturalized citizen, when and where born,
and his residence.
68. In case an applicant has declared his intention to he-
come a citizen or has been naturalized, his affidavit must
show the date, place, and the court before which he declared
his intention, or from which his certificate of citizenship
issued, and present residence.
69. The affidavit of the claimant as to his citizenship may
be taken before the register or receiver, or any other officer
authorized to administer oaths within the land district ; or,
if the claimant is residing beyond the limits of the district, •
the affidavit may be taken before the clerk of any court of
360 LAND OFFICE RULES.
record or before any notary public of any State or Terri-
tory.
70. Proof by Disinterested Witnesses. — If citizenship is
established by the testimony of disinterested persons, such
testimony may be taken at any place before any person
authorized to administer oaths, and whose official character
is duly verified.
71. Scrutiny of Proofs, — No entry will be allowed until
the register has satisfied himself, by careful examination,
that proper proofs have been filed upon the points indicated
in the law and official regulations. Transfers made sub-
sequent to the filing of the application for patent will not
be considered, but entry will be allowed and patent issued
in all cases in the name of the applicant for patent, the
title conveyed by the patent, of course, in each instance
inuring to the transferee of such applicant where a transfer
has been made pending the application for patent.
72. The consecutive series of numbers of mineral entries
must be continued, whether the same are of lode or placer
claims or mill sites.
73. Register's Certificate of Posting in Land Office — Plat. —
In sending up the papers in a case the register must not
omit certifying to the fact that the notice was posted in
his office for the full period of sixty days, such certificate
to state distinctly when such posting was done and * how
long continued. The plat forwarded as part of the proof
should not be folded, but rolled, so as to prevent creasing,
and either transmitted in a separate package or so enclosed
with the other papers that it may pass through the mails
without creasing or mutilation. If forwarded separately,
the letter transmitting the papers should state the fact.
POSSESSORY RIGHT.
74. Chain of Title Broken, "but Possession Clear. — The pro-
visions of section 2332, Revised Statutes, will greatly lessen
the burden of proof, more especially in the case of old
claims located many years since, the records of which,
in many cases, have been destroyed by fire, or lost in other
ways during the lapse of time, but concerning the possessory
right to which all controversy or litigation has long been
settled.
75. Details of Proof in Such Case. — When an applicant
desires to make his proof of possessory right in accordance
with this provision of law, he will not be required to produce
evidence of location, copies of conveyances, or abstracts of
title, as in other cases, but will be required to furnish a
duly certified copy of the statute of limitation of mining
claims for the State or Territory, together with his sworn
statement giving a clear and succinct narration of the facts
as to the origin of his title, and likewise as to the contin-
uation of his possession of the mining ground covered by
his application ; the area thereof ; the nature and extent of
LAND OFFICE RULES. 361
the mining that has been done thereon ; whether there has
been any opposition to his possession, or litigation with re-
gard to his claim and, if so, when the same ceased : whether
such cessation was caused by compromise or by judicial de-
cree, and any additional facts within the claimant's knowl-
edge having a direct bearing upon his possession and bona
fides which he may desire to submit in support of his claim.
76. There should likewise be filed a certificate, under seal
of the court having jurisdiction of mining cases within
the judicial district embracing the claim, that no suit or
action of any character whatever involving the right of pos-
session to any portion of the claim applied for is pending,
and that there has been no litigation before said court
affecting the title to said claim or any part thereof for a
period equal to the time fixed by the statute of limitations
for mining claims in the State or Territory as aforesaid,
other than that which has been finally decided in favor of
the claimant.
77. The claimant should support his narrative of facts rela-
tive to his possession, occupancy, and improvements by cor-
roborative testimony of any disinterested person or persons
of credibility who may be cognizant of the facts in the case
and are capable of testifying understandingly in the prem-
ses.
ADVERSE CLAIMS.
78. An adverse mining claim must be filed with the register
and receiver of the land office where the application for
patent was filed, or with the register and receiver of the
district in which the land is situated at the time of filing
the adverse claim. It must be on the oath of the adverse
claimant, or it may be verified by the oath of any duly
authorized agent or attorney in fact of the adverse claim-
ant cognizant of the facts stated.
79. Where an agent or attorney in fact verifies the adverse
claim, he must distinctly swear that he is such agent or at-
torney, and accompany his affidavit by proof thereof.
80. The agent or attorney in fact must make the affidavit
in verification of the adverse claim within the land district
where the claim is situated.
81. The adverse notice must fully set forth the nature and
extent of the interference or conflict ; whether the adverse
party claims as a purchaser for valuable consideration or
as a locator ; if the former, a certified copy of the original
location, the original conveyance, a duly certified copy
thereof, or an abstract of title from the office of the proper
recorder should be furnished, or if the transaction was a
merely verbal one he will narrate the circumstances attend-
ing the purchase, the date thereof, and the amount paid,
which facts should be supported by the affidavit of one or
more witnesses, if any were present at the time, and if
he claims as a locator he must file a duly certified copy o*
the location from the office of the proper recorder.
362 LAND OFFICE RULES.
82. Plat of Conflict — Legal Subdivisions. — In order that
the "boundaries" and "extent" of the claim may be shown,
it will be incumbent upon the adverse claimant to file a plat
showing his entire claim, its relative situation or position
with the one against which he claims, and the extent of the
conflict : Provided, however, That if the application for pat-
ent describes the claim by legal subdivisions, the adverse '
claimant, if also claiming by legal subdivisions, may de-
scribe his adverse claim in the same manner without fur-
ther survey or plat. If the claim is not described by legal
subdivisions, it will generally be more satisfactory if the plat
thereof is made from an actual survey by a deputy mineral
survevor, and its correctness officially certified thereon by
him.
83. Notice of Filing Adverse. — Upon the foregoing being
filed within the sixty days' publication, the register, or in
his absence the receiver, will give notice in writing to both
parties to the contest that such adverse claim has been filed,
informing them that the party who filed the adverse claim
will be required within thirty days from the date of such
filing to commence proceedings in a court of competent juris-
diction to determine the question of right of possession,
and to prosecute the same with reasonable diligence to final
judgment, and that, should such adverse claimant fail to do
so, his adverse claim will be considered waived, and the ap-
plication for patent be allowed to proceed upon its merits.
84. Adverse Stays Proceedings. — When an adverse claim
is filed as aforesaid, the register or receiver will indorse
upon the same the precise date of filing, and preserve a rec-
ord of the date of notifications issued thereon ; and thereafter
all proceedings on the application for patent will be sus-
pended, with the exception of the completion of the publi-
cation and posting of notices and plat, and the filing of the
necessary proof thereof, until the controversy shall have
been adjudicated in court, of the adverse claim waived or
withdrawn.
85. Copy of Judgment. — Where an adverse claim has been
filed and suit thereon commenced within the statutory period,
and final judgment rendered determining the right of pos-
session, it will not be sufficient to file with the register a
certificate of the clerk of the court, setting forth the facts
as to such judgment, but the successful party must, before
he is allowed to make entry, file a certified copy of the judg-
ment, together with the other evidence required by section
2326, Revised Statutes.
86. Where such suit has been dismissed, a certificate of the
clerk of the court to that effect or a certified copy of the
order of dismissal will be sufficient.
87. Relinqu;shment After Adverse. — After an adverse
claim has been filed and suit commenced, a relinquishment
or other evidence of abandonment of the adverse claim will
not be accepted, but the case must be terminated and proof
thereof furnished as required by the last two paragraphs.
LAND OFFICE RULES. 363
88. Certificate of No Suit Brought. — Where an adverse
claim has been filed, but no suit commenced against the ap-
plicant for patent within the statutory period, a certificate
to that effect by the clerk of the State court having jurisdic-
tion in the case, and also by. the clerk of the circuit court of
the United States for the district in which the claim is
situated, will be required.
APPOINTMENT OF DEPUTIES FOR SURVEY OF MINING CLAIMS
CHARGES FOR SURVEYS AND PUBLICATIONS FEES OF REG-
ISTERS AND RECEIVERS., ETC.
89. Newspaper Charges.— Section 2334 provides for the
appointment of surveyors to survey mining claims, and au-
thorizes the Commissioner of the General Land Office to es-
tablish the rates to be charged for surveys and for news-
paper publications. Under this authority of law the fol-
lowing rates have been established as the maximum charges
for newspaper publications in mining cases :
(1) Where a daily newspaper is designated the charge
shall not exceed seven dollars for each ten lines of space
occupied, and where a weekly newspaper is designated as
the medium of publication five dollars for the same space
will be allowed. Such charge shall be accepted as full
payment for publication in each issue of the newspaper for
the entire period required by law.
It is expected that these notices shall not be so abbre-
viated as to curtail the description essential to a perfect no-
tice, and the said rates established upon the understanding
that they are to be in the usual body type used for adver-
tisements.
(2) For the publication of citations in contests or
hearings involving the character of lands the charges shall
not exceed eight, dollars for five publications in weekly
newspapers or ten dollars for publications in daily news-
papers for thirty days.
90. Appointment of Deputy Surveyors — Bond. — The survey-
ors-general of the several districts will, in pursuance of
said law, appoint in each land district as many competent
surveyors for the survey of mining claims as may seek such
appointment, it being distinctly understood that all ex-
penses of these notices and surveys are to be borne by
the mining claimants and not by the United States. The
statute provides that the claimant shall also be at liberty
to employ any United States deputy surveyor to make the
survey. Each surveyor appointed to survey mining claims
before entering upon the duties of his office or appointment
shall be required to enter into such bond for the faithful
performance of his duties as may be prescribed by the
regulations of the land department in force at that time.
91. Surveyor-General's Fees. — With regard to the plat-
ting of the claim and other office wor'k in the surveyor-gen-
eral's office, that officer will make an estimate of the cost
thereof, which amount the claimant will deposit with any
364 LAND OFFICE RULES.
assistant United States treasurer or designated depository
in favor of the United States Treasurer, to be passed to the
credit of the fund created by "individual depositors for sur-
veys of the public lands," and file with the surveyor-gen-
eral duplicate certificates of such deposit in the usual man-
ner.
92, Deputies for Each District. — The surveyors-general
will endeavor to appoint surveyors to survey mining claims,
so that one or more may be located in each mining district
for the greater convenience of miners.
93, The usual oaths will "be required of these surveyors and
their assistants as to the correctness of each survey exe-
cuted by them.
The duty of the surveyor ceases when he has executed
the survey and returned the field notes and preliminary plat
thereof with his report to the surveyor-general. He will
not be allowed to prepare for the mining claimant the papers
in support of an application for patent, or otherwise per-
form the duties of an attorney before the land office in
connection with a mining claim.
The surveyors-general and local land officers are ex-
pected to report any infringement of this regulation to this
office.
94, Should it appear that excessive or exorbitant charges
have been made by any surveyor or any publisher, prompt
action will be taken with the view of correcting the abuse.
95, The fees payable to the register and receiver for filing
and acting upon applications for mineral-land patents are
five dollars to each officer, to be paid by the applicant for
patent at the time of filing, and the like sum of five dollars
is payable to each officer by an adverse claimant at the time
of filing his adverse claim. (Sec. 2238, R. S., paragraph 9.)
96, Receipt for Fees. — At the time of payment of fee for
mining application or adverse claim the receiver will issue
his receipt therefor in duplicate, one to be given the ap-
plicant or adverse claimant, as the case may be, and one
to be forwarded to the Commissioner of the General Land
Office on the day of issue. The receipt for mining appli-
cation should have attached the certificate of the register
that the lands included in the application are subject to
such appropriation, as far as shown by the records of his
office.
97, Monthly Reports to General Land Office, — The register
and receiver will, at the close of each month, forward to
this office an abstract of mining applications filed, an ab-
stract of adverse claims filed, an abstract of mineral lands
sold, and a report of receipts from such sales.
98, The fees and purchase money received by registers and
receivers must be placed to the credit of the United States
in the receiver's monthly and quarterly account, charging
up in the disbursing account the sums to which the register
LAND OFFICE RULES. 365
and receiver may be respectively entitled as fees and com-
missions, with limitations in regard to the legal maximum.
HEARINGS TO DETERMINE CHARACTER OF LANDS.
99. The Rules of Practice in cases before the United States
district land offices, the General Land Office, and the De-
partment of the Interior will, so far as applicable, govern
in all cases and proceedings arising in contests and hear-
ings to determine the mineral character of lands.
100. Agricultural Entry of Lands Returned as Mineral. —
Public land returned by the surveyor-general as mineral
shall be withheld from entry as agricultural land until the
presumption arising from such a return shall be overcome
by testimony taken in the manner hereinafter described.
101. Hearings to determine the character of lands are prac-
tically of two kinds, as follows :
(1) Lands returned as mineral- by the surveyor-gen-
eral.
When such lands are sought to be entered as agricul-
tural under laws which require the submission of final proof
after due notice by publication and posting, the filing of
the proper nonmineral affidavit in the absence of allega-
tions that the land is mineral will be deemed sufficient as
a preliminary requirement. A satisfactory showing as to
character of land must be made when final proof is sub-
mitted.
In case of application to enter, locate, or select such
lands as agricultural, under laws in which the submis-
sion of final proof after due publication and posting is not
required, notice thereof must first be given by publication
for sixty days and posting in the local land office during the
same period, and affirmative proof as to the character of
the land submitted. In the absence of allegations that the
land is mineral, and upon compliance with this requirement,
the entry, location, or selection will be allowed, if otherwise
regular.
(2) Lands returned as agricultural and alleged to
be mineral in character.
Where as against the claimed right to enter such lands
as agricultural it is alleged that the same are mineral, or
are applied for as mineral lands, the proceedings in this
class of cases will be in the nature of a contest, and the
practice will be governed by the rules in force in contest
cases.
102. Where a railroad company seeks to select lands not
returned as mineral, but within six miles of any mining lo-
cation, claim, or entry, or where in the case of a selection
by a State, the lands sought to be selected are within a
township in which there is a mining location, claim, or entry,
publication must be made of the lands selected at the ex-
pense of the railroad company or State for a period of sixty
days, with posting for the same period in the land office
366 LAND OFFICE RULES.
for the district in which the lands are situated, during
which period of publication the local land officers will re-
ceive protests or contests for any of said tracts or subdi-
visions of lands claimed to be more valuable for mining
than for agricultural purposes.
103, Protests Against Railroad Selections. — At the expira-
tion of the period of publication the register and receiver
will forward to the Commissioner of the General Land
Office the published list, noting thereon any protests, or con-
tests, or suggestions as to the mineral character of any
such lands, together with any information they may have
received as to the mineral character of any of the lands
mentioned in said list, when a hearing may be ordered.
104. In lieu selections under the acts of June 4, 1897, and
June 6, 1900, of land which has been returned as mineral,
or which is within six miles of any mining claim, notice of
the selection, commencing within twenty days thereafter,
must be given, for a period of thirty days, by posting upon
the land and in the local land office, and by publication at
the cost of the applicant in a newspaper designated by the
register as of general circulation in the vicinity of the land
and published nearest thereto. Where the selection em-
braces noncontiguous tracts the notice must be posted upon
each tract ; but such notice will not be required in any
case where the selection is in lieu of "a tract covered by
an unperfected bona fide claim," viz. : A tract the title to
which has not passed out of the United States or for which
patent certificate has not issued.
105. Examination of Witnesses. — At the hearings under
either of the aforesaid classes, the claimants and witnesses
will be thoroughly examined with regard to the character
of the land ; whether the same has been thoroughly pros-
pected ; whether or not there exists within the tract or tracts
claimed any lode or vein of quartz or other rock in place,
bearing gold, silver, cinnabar, lead, tin, or copper, or other
valuable deposit which has ever been claimed, located, re-
corded, or worked ; whether such work is entirely abandoned,
or whether occasionally resumed ; if such lode does exist, by
whom claimed, under what designation, and in which subdi-
vision of the land it lies ; whether any placer mine or mines
exist upon the land ; if so, what is the character thereof —
whether of the shallow-surface description, or of the deep
cement, blue lead, or gravel deposits ; to what extent mining
is carried on when water can be obtained, and what the fa-
cilities are for obtaining water for mining -purposes ; upon
what particular ten-acre subdivisions mining has been done,
and at what time the land was abandoned for mining pur-
poses, if abandoned at all.
106, The testimony should also show the agricultural capa-
cities of the land, what kind of crops are raised thereon,
and the value thereof ; the number of acres actually culti-
vated for crops of cereals or vegetables, and within which
particular ten-acre subdivision such crops are raised ; also
LAND OFFICE RULES. 367
which of these subdivisions embrace the improvements, giv-
ing in detail the extent and value of the improvements,
such as house, barn, vineyard, orchard, fencing, etc., and
mining improvements.
107. The testimony should be as full and complete as pos-
sible : and in addition to the leading points indicated above,
where an attempt is made to prove the mineral character
of lands which have been entered under the agricultural
laws, it should show at'what date, if at all, valuable deposits
of minerals were first known to exist on the lands.
108. Segregating Mineral from Agricultural Land. — When
the case comes before this office, such decision will be made
as the law and the facts may justify. In cases where a
survey is necessary to set apart the mineral from the ag-
ricultural land, the proper party, at Ms own expense, will
be required to have the work done by a surveyor to be des-
ignated by the surveyor-general. Application therefor must
be made to the register and receiver, accompanied by de-
scription of the land to be segregated and the evidence
of service upon the opposite party of notice of his intention
to have such segregation made. The register and receiver
will forward the same to this office, when the necessary
instructions for the survey will be given. The survey in
such case, where the claims to be segregated are vein or lode
claimsx must be executed in such manner as will conform
to the requirements in section 2320, United States Revised
Statutes, as to length and width and parallel end lines.
109. Such survey when executed must be properly sworn to
by the surveyor, either before a notary public, officer of a
court of record, or before the register or receiver, the de-
ponent's "character and credibility to be properly certified
to by the officer administering the oath.
110. Verified Plat by Surveyor-General. — Upon the filing
of the plat and field notes of such survey with the register
and receiver, duly sworn to as aforesaid, they will trans-
mit the same to the surveyor-general for his verification and
approval ; who, if he finds the work correctly performed,
will furnish authenticated copies of such plat and descrip-
tion both to the proper local land office and to this office,
made upon the usual drawing-paper township blank.
The copy of plat furnished the local office and this
office must be a diagram verified by the surveyor-general,
showing the claim or claims segregated, and designating
the separate fractional agricultural tracts in each 40-acre
legal subdivision by the proper lot number, beginning with
No. 1 in each section, and giving the area in each lot, the
same as provided in paragraph 37 in the survey of mining
claims on surveyed lands.
111. Proceedings if Land Decided to Be Mineral.— The fact
that a certain tract of land is decided upon testimony to
be mineral in character is by no means equivalent to an
award of the land to a miner. In order to secure a pat-
368 LAND OFFICE RULES.
ent for such land, he must proceed as in other cases, in
accordance with the foregoing regulations
Blank forms for proofs in mineral cases are not fur-
nished by the General Land Office.
DISTRICT OF ALASKA.
112. Section 13, act of May 14, 1898, according to native-
born citizens of Canada "the same mining rights and priv-
ileges" in the district of Alaska as are accorded to citizens
of the United States in British Columbia and the Northwest
Territory by the laws of the Dominion of Canada, is not
now and never has been operative, for the reason that the
only mining rights and privileges granted to any person
by the laws of the Dominion of Canada are those of leas-
ing mineral lands upon the payment of a stated royalty,
and the mining laws of the United States make no provis-
ion for such leases.
113. For the sections of the act of June 6, 1900, making
further provision for a civil government for Alaska, which
provide for the establishment of recording districts and the
recording of mining locations ; for the making of rules and
regulations by the miners and for the legalization of min-
ing records ; for the extension of the mining laws to the
district of Alaska, and for the exploration and mining of
tide lands and lands below low tide ; and relating to the
rights of Indians and persons conducting schools or mis-
sions, see page 20 of this circular (81 L. D. p. j.70).
MINERAL LANDS WITHIN FOREST RESERVES.
114. The act of June 4, 1897, provides that "any mineral
lands in any forest reservation which have been or which
may be shown to be such, and subject to entry under the ex-
isting mining laws of the United States and the rules and
regulations applying thereto, shall continue to be subject
to such location and entry," notwithstanding the reservation.
This makes mineral lands in the forest reserves subject to
location and entry under the general mining laws in the
usual manner.
The act also provides that, "The Secretary of the In-
terior may permit, under regulations to be prescribed by
him, the use of timber and stone found upon such reserva-
tions, free of charge, by bona fide settlers, miners, residents,
and prospectors for minerals, for firewood, fencing, build-
ings, mining, prospecting, and other domestic purposes, as
may be needed by such persons for such purposes ; such
timber to be used within the State or Territory, respectively,
where such reservations may be located."
For further instructions under this act see circular
of April 4, 1900 (30 L. D. 23, 28-30.)
LAND OFFICE RULES. 369
SURVEYS OF MINING CLAIMS.*
GENERAL PROVISIONS.
115. Appointment of Deputies.— Under section 2334, U. S.
Rev. Stats., the U. S. surveyor-general -"may appoint in each
land district containing mineral lands as many competent
surveyors as shall apply for appointment to survey mining
claims."
116. Persons desiring such appointments should therefore
file their applications with the surveyor-general for the dis-
trict wherein appointment is asked, who will furnish all
information necessary.
117. All appointments of deputy mineral surveyors must be
submitted to the Commissioner of the General Land Office
for approval.
118. Suspension of Deputy. — The surveyors-general have
authority to suspend or revoke the commissions of deputy
mineral surveyors for cause. Before final action, however,
the matter should be submitted to the Commissioner of
the General Land Office for approval.
119. Such surveyors will be allowed the right of appeal from
the action of the surveyor-general in the usual manner.
Such appeal should be filed with the surveyor-general, who
will at once transmit the same, with a full report, to the
General Land Office.
120. Investigation of Deputy's Charges. — Neither the sur-
veyor-general nor the Commissioner of the General Land
Office has jurisdiction to settle differences, relative to the
payment of charges for field work, between deputy mineral
surveyors and claimants. These are matters of private
contract and must be enforced in the ordinary manner, i. e.f
in the local courts. The Department has, however, author-
ity to investigate charges affecting the official actions of
deputy mineral surveyors, and will, on sufficient cause shown,
suspend or revoke their appointment.
121. The surveyors-general should appoint as many compe-
tent deputy mineral surveyors as apply for appointment, in
order that claimants may have a choice of surveyors, and
be enabled to have their work done on the most advantage-
ous terms.
122. The schedule of charges for office work should be as
low as is possible. No additional charges should be made
for orders for amended surveys, unless the necessity there-
for is clearly the fault of the claimant, or considerable ad-
ditional office work results therefrom.
123. In cases where the error in the original survey is due
to the carelessness or neglect of the surveyor who made it,
* Since 1895, and until the present Revision, the fol-
lowing Rules were contained in the "Manual of Instruc-
tions."
370 LAND OFFICE RULES.
he should be required to make the necessary corrections in
the field at his own expense, and the surveyor-general should
advise him that the penalty for failure to comply with in-
structions within a specified time will be the suspension or
revocation of his commission.
124. Mineral surveyors will address all official communica-
tions to the surveyor-general. They will, when a mining
claim is the subject of correspondence, give the name and
survey number. In replying to letters they will give the
subject-matter and date of the letter. They will promptly
notify the surveyor-general of any change in post-office ad-
dress.
125. Mineral surveyors should keep a complete record of
each survey made by them and the facts coming to their
knowledge at the time, as well as copies of all their field
notes, reports, and official correspondence, in order that
such evidence may be readily produced when called for at
any future time. Field notes and other reports must be
written in a clear and legible hand or typewritten, in non-
copying ink,' and upon the proper blanks furnished gratu-
itously by the surveyor-general's office upon application
therefor. No interlineations or erasures will be allowed.
126. No return by a mineral surveyor will "be recognized as
official unless it is over his signature as a United States dep-
uty mineral surveyor, and made in pursuance of a special
order from the surveyor-general's office. After he has re-
ceived an order for survey he is required to make the sur-
vey and return correct field notes thereof to the surveyor-
general's office without delay.
127. Claimant Contract With Deputy.— The claimant is
required., in all cases, to make satisfactory arrangements
with the surveyor for the payment for his services and those
of his assistants in making the survey, as the Untied States
will not be held responsible for the same.
128. Deputy Not Act as Attorney. — A mineral surveyor is
precluded from acting, either directly or indirectly, as at-
torney in mineral claims. His duty in any particular case
ceases when he has executed the survey and returned the
field notes and preliminary plat, with his report, to the sur-
veyor-general. He will not be allowed to prepare for the
mining claimant the papers in support of his application for
patent, or otherwise perform the duties of an attorney be-
fore the land office in connection with a mining claim/ He
is not permitted to combine the duties of surveyor and
notary public in the same case by administering oaths to
the parties in interest, but as a notary public he may ad-
minister the oaths to his assistants in making the survey ;
otherwise he must have absolutely nothing to do with the
case, except in his official capacity as surveyor. He will
make no survey of a mineral claim in which he holds an
interest, nor will he employ chainmen interested therein in
any manner.
LAND OFFICE RULES. 371
SURVEY HOW MADE.
129. Survey Must Be Actual, — The survey made and re-
turned must, in every case, be an actual survey on the
ground in full detail, made by the mineral surveyor in per-
son after the receipt of the order, and without reference
to any knowledge he may have previously acquired by rea-
son of having made the location survey or otherwise, and
mus.t show the actual facts existing at the time. This pre-
cludes him from calculating the connections to corners of
the public survey and location monuments, or any other
lines of his survey through prior surveys made by others
and substituting the same for connections or lines of the
survey returned by him. The term survey in this para-
graph applies not only to the usual field work, but also
to the examinations required for the preparation of affi-
davits of five hundred dollars expenditure, descriptive re-
ports on placer claims, and all other reports.
130. The survey of a mining claim may consist of several
contiguous locations, but such survey must, in conformity
with statutory requirements, distinguish the several loca-
tions, and exhibit the boundaries of each. The survey will
be given but one number.
131. The survey must be made in strict conformity with, or
be embraced within, the lines of the location upon which the
order is based. If the survey and location are identical,
that fact must be clearly and distinctly stated in the field
notes. If not identical, a bearing and distance must be
given from each established corner of survey to the cor-
responding corner of the location, and the location corner
must be fully described, so that it can be identified. The
lines of the location, as found upon the ground, must be laid
down upon the preliminary plat in such a manner as to
contrast and show their relation to the lines of the survey.
132. Corners Not to Be Changed. — In view of the princi-
ple that courses and distances must give way when in
conflict with fixed objects and monuments, the surveyor
will not, under any circumstances, change the corners of
the location for the purpose of making them conform to
the description in the record. If the difference from the
location be slight, it may be explained in the field notes.
133. Not Exceed Statutory Length and Width, — No mining
claim located subsequent to May 10, 1872, should exceed the
statutory limit in width on each side of the center of vein
or 1,500 feet in length, and all surveys must close within
50-100 feet in 1,000 feet, and the error must not be such
as to make the location exceed the statutory limit, and in
absence of other proof the discovery point is held to be
the center of the vein on the surface. The course and length
of the vein should be marked upon the plat.
134. Instrument— True Meridian.— All mineral surveys
must be made with a transit, provided with a solar attach-
372 LAND OFFICE RULES.
raent, by which the meridian can be determined independ-
ently of the magnetic needle, and all courses must be re-
ferred to the true meridian. The variation should be noted
at each corner of the survey. The true course of at least
one line of each survey must be ascertained by astronom-
ical observations made at the time of the survey ; the data
for determining the same and details as to how these data
were arrived at must be given. Or, in lieu of the foregoing
the survey must be connected with some line the true course
of which has been previously established beyond question,
and in a similar manner, and, when such lines exist, it is
desirable in all cases that, they should be used as a proof
of the accuracy of subsequent work.
135. Ties to Public Survey, — Corner No. 1 of each loca-
tion embraced in a survey 'must be connected by course and
distance with nearest corner of the public survey or
with a United States location monument, if the claim lies
within two miles of such corner or monument. If both are
within the required distance the connection must be with
the corner of the public survey.
136. Mineral Monuments in Suspended Townships. — Sur-
veys and connections of mineral claims may be made in
suspended townships in the same manner as though the
claims were upon unsurveyed land, except as hereinafter
specified, by connecting them with independent mineral
monuments. At the same time, the position of any public-
land corner which may be found in the neighborhood of
the claim should be noted, so that, in case of the release of
the township from suspension, the position of the claim can
be shown on the plat.
137. No Choice of Tie. — A mineral survey must not be
returned with its connection made only with a corner of the
public survey, where the survey of the township within
which it is situated is under suspension, nor connected with
a mineral monument alone, when situated within the limits
of a township the regularity and correctness of the survey
of which is unquestioned.
138. Corner No, 1 — Section Lines. — In making an official
survey, corner No. 1 of each location must be established
at the corner nearest the corner of the public survey or
location monument, unless good cause is shown for its be-
ing placed otherwise. If connections are given to both a
corner of the public survey and location monument, corners
Nos. 1 should be placed at the corner nearest the corner of
the public survey. When a boundary line of a claim inter-
sects a section line courses and distances from point of in-
tersection to the Government corners at each end of the
half mile of section line so intersected must be given.
139. Erection of Mineral Monuments. — In case a survey is
situated in a district where there are no corners of the
public survey and no monuments within the prescribed
limits, a mineral monument must be established, in the lo-
LAND OFFICE RULES. 373
cation of which the greatest care must be exercised to in-
sure permanency as to site and construction.
140. The site, when practicable, should be some prominent
point, visible for a long distance from every direction, and
should be so chosen that the permanency Of the monument
will not be endangered by snow, rock, or landslides, or other
natural causes.
141. Dimensions and Marking. — The monument should
consist of a stone not less than 30 inches long, 20 inches
wide, and 6 inches thick, set halfway in the ground, with
a conical mound of stone 4 feet high and 6 feet base along-
side. The letters U. S. L. M., followed by the consecutive
number of the monument in the district, must be plainly chis-
eled upon the stone. If impracticable to obtain a stone of
required dimensions, then a post 8 feet long, 6 inches square,
set 3 feet in the ground, scribed as for a stone monu-
ment, protected by a well-built conical mound of stone of
not less than 3 feet high and 6 feet base around it, may
be used. The exact point for connection must be indi-
cated on the monument by an x chiseled thereon ; if a post
is used, then a tack must be driven into the post to indicate
the point.
142. Ties to Mineral Monument. — From the monument,
connections by course and distance must be taken to two
or three bearing trees or rocks, and to any well-known and
permanent objects in the vicinity, such as the confluence
of streams, prominent rocks, buildings, shafts, or mouths of
adits. Bearing trees must be properly scribed B. T. and
bearing rocks chiseled B. R., together with the number of
the location monument ; the exact point on the tree or stone
to which the connection is taken should be indicated by a
cross or other unmistakable mark. Bearings should also
be taken to prominent mountain peaks, and the approximate
distance and direction ascertained from the nearest town
or mining camp. A detailed description of the locating
monument, with a topographical map of its location, should
be furnished the office of the surveyor-general by the sur-
veyor.
143. Corners may consist of —
First. — A stone at least 24 inches long set 12 inches in
the ground, with a conical mound of stone 1% feet high, 2
feet base, alongside.
Second. — A post at least 3 feet long by 4 inches square,
set 18 inches in the ground and surrounded by a substantial
mound of stone or earth. ,
Third. — A rock in place.
A stone should always be used for a corner when pos-
sible, and when so used the kind should be stated.
144. Marking Corners. — All corners must be established
in a permanent and workmanlike manner, and the corner
and survey number must be neatly chiseled or scribed on
the sides facing the claim. The exact corner point must be
374 LAND OFFICE RULES.
permanently indicated on the corner. When a rock in place
is used its dimensions above ground must be stated and a
cross chiseled at the exact corner point.
145. In case the point for the corner be inaccessible or un-
suitable a witness corner, which must be marked with the
letters W. C. in addition to the corner and survey number,
should be established. The witness corner should be located
upon a line of the survey and as near as possible to the
true corner, with which it must be connected by course and
distance. The reason why it is impossible or impracticable
to establish the true corner must always be stated in the
field notes, and in running the next course it should be
stated whether the start is made from the true place for
corner or from witness corner.
146. The identity of all corners should be perpetuated by
taking courses and distances to bearing trees, rocks, and
other objects, as prescribed in the establishment of location
monuments, and when no bearings are given it should be
stated that no bearings are available. Permanent objects
should be selected for bearings whenever possible.
147. Tying to Official Survey — If an official survey has
been made within a reasonable distance in the vicinity,
there should be a connecting line run to some corner of
the same, and in like manner all conflicting surveys and
claims should be so connected, and the corner with which
the connection is made described.. In survey of contigu-
ous locations which are part of a consolidated claim, where
corners are common, bearings should be mentioned but once.
148. Topography. — The mineral surveyor should note
carefully all topographical features of the claim, taking dis-
tances on his lines to intersections with all streams, gulches,
ditches, ravines, mountain ridges, roads, trails, etc., with
their widths, courses, and other data that may be required to
map them correctly. All municipal or private improvements,
such as blocks, streets, and buildings, should be located.
149. Conflict With Other Surveys. — If, in running the ex-
terior lines of a claim, the survey is found to conflict with
the survey of another claim, the distances to the points of
intersection; and the courses and distances along the line
intersected from an established corner of such conflicting
claim to such points of intersection, should be described in
the field notes : Provided, That where a corner of the con-
flicting survey falls within the claim being surveyed, such
corner should be selected from which to give the bearing,
otherwise the corner nearest the intersection should be
taken. The same rule should govern in the survey of claims
embracing two or more locations the lines of which inter-
sect.
150. A lode and mill-site claim in one survey will be dis-
tinguished by the letters A and B following the number of
the survey. The corners of the mill site will be numbered
independently of those of the lode. Corner No, 1 of the
LAND OFFICE RULES. 375
mill site must be connected with a corner of the lode claim
as well as with a corner of the public survey or United
States location monument.
151. When a placer claim includes lodes, or when several
contiguous placer or lode locations are included as one
claim in one survey, there must be given to the corners of
each location constituting the same a separate consecutive
numerical designation, beginning with corner No. 1 in each
case.
152. Conflicting Surveys Named, — Throughout the descrip-
tion of the survey, after each reference to the lines or corners
of a location, the name thereof must be given, and if unsur-
veyed, the fact stated. If reference is made to a location
included in a prior official survey, the survey number must
be given, followed by the name of the location. Corners
should be described once only.
153. The total area of each location and also the area in
conflict with each intersecting survey or claim should be
stated ; also the total area claimed. But when locations
embraced in one survey conflict with each other such con-
flicts should only be stated in connection with the location
from which the conflicting area is excluded.
154. Section, Township and Range to Be Shown. — It should
be stated particularly whether the claim is upon surveyed
or unsurveyed public lands, giving in the former case the
quarter section, township, and range in which it is located,
and the section lines should be indicated by full lines and
the quarter-section lines by dotted lines.
155. The title-page of the field notes must contain the post-
office address of the claimant or his authorized agent.
156. In the mineral surveyor's certificate of the value of the
improvements all actual expenditures and mining improve-
ments made by the claimant or his grantors, having a direct
relation to the development of the claim, must be included
in the estimate.
157. What Improvements Excluded, — The expenditures re-
quired may be made from the surface or in running a tun-
nel, drifts, or crosscuts for the development of the claim.
Improvements of any other character, such as buildings, ma-
chinery, or roadways, must be excluded from the estimate,
unless it is shown clearly that they are associated with act-
ual excavations, such as cuts, tunnels, shafts, etc., are essen-
tial to the practical development of, and actually facili-
tate the extraction of mineral from, the claim.
158. Ties — Abandoned Improvements. — All mining and
other improvements claimed will be located by courses and
distances from corners of the survey, or from points on the
center or side lines, specifying with particularity and detail
the dimensions and character of each, and the improvements
upon each location should be numbered consecutively, the
point of discovery being always No. 1. Improvements made
376 LAND OFFICE RULES.
upon other locations, or by a former locator who has aban-
doned the claim, can not be included in the estimate, but
should be described and located in the notes and plat.
159. In case of a lode and mill-site claim in the same sur-
vey the expenditure of five hundred dollars must be shown
upon the lode claim.
160. Expenditure During Publication, — If the value of the
labor and improvements upon a mineral claim is less than
five hundred dollars at the time of survey, the mineral sur-
veyor may file with the surveyor-general supplemental proof
showing five hundred dollars expenditure made prior to the
expiration of the period of publication.
161. Preliminary Plat. — The mineral surveyor will re-
turn with his field notes a preliminary plat on blank sent
to him for that purpose, protracted on a scale of two hun^
dred feet to an inch, if practicable. In preparing plats the
top is north. Copy of the calculations of areas by double
meridian distances and of all triangulations or traverse lines
must be furnished. The lines of the claim surveyed should
be heavier than the lines of conflicting claims.
162. Errors — Joint Survey. — Whenever a survey has been
reported in error the surveyor who made it will be required
to promptly make a thorough examination upon the premises
and report the result, under oath, to the surveyor-general's
office. In case he finds his survey in error he will report
in detail all discrepancies with the original survey and sub-
mit any explanation he may have to offer as to the cause.
If, on the contrary, he should report his survey correct, a
joint survey will be ordered to settle the differences with the
surveyor who reported the error. A joint survey must be
made within ten days after the date of order unless satis-
factory reasons are submitted, under oath, for a postpone-
ment. The field work must in every sense of the term
be a joint and not a separate survey, and the observations
and measurements taken with the same instrument and chain,
previously tested and agreed upon.
163. The surveyor found in error, or, if both are in error,
the one who reported the same, will make out the field notes
of the joint survey, which, after being duly signed and sworn
to by both parties, must be transmitted to the surveyor-
general's office.
164. Inasmuch as amended surveys are ordered only by
special instructions from the General Land Office, and the
conditions and circumstances peculiar to each separate case,
and the object sought by the required amendment, alone
govern all special matters relative to the manner of making
such survey and the form and subject-matter to be embraced
in the field notes thereof, but few general rules applicable to
all cases can be laid down.
165. The amended survey must be made in strict conform-
ity with, or be embraced within, the lines of the original
survey. If the amended and original surveys are identical.
LAND OFFICE RULES. 377
that fact must be clearly and distinctly stated in the field
notes. If not identical, a bearing and distance must be
given from each established corner of the amended survey
to the corresponding corner of the original survey. The
lines of the original survey, as found upon the ground, must
be laid down upon the preliminary plat in such manner as
to contrast and show their relation to the lines of the
amended survey.
166. The field notes of the amended survey must be pre-
pared on the same size and form of blanks as are the field
notes of the original survey, and the word "amended" must
be used before the word "survey" wherever it occurs in the
field notes.
167. Descriptive Report on Placers, — Mineral surveyors
are required to make full examinations of all placer claims
at the time of survey and file with the field notes a descrip-
tive report, in which will be described —
(a) The quality and composition of the soil, and the
kind and amount of timber and other vegetation.
(&) The locus and size of streams, and such other
matter as may appear upon the surface of the claims.
(c) The character and extent of all surface and under-
ground workings, whether placer or lode, for mining pur-
poses, locating and describing them.
(d) The proximity of centers of trade or residence.
(e) The proximity of well-known systems of lode de-
posits or of individual lodes.
(f) The use or adaptability of the claim for placer
mining, and whether water has been brought upon it in
sufficient quantity to mine the same, or whether it can be
procured for that purpose.
(g) What works or expenditures have been made by
the claimant or his grantors for the development of the
claim, and their situation and location with respect to
the same as applied for.
(h) The true situation of all mines, salt licks, salt
springs, and mill sites which come to the surveyor's knowl-
edge, or a report by him that none exist on the claim, as the
facts may warrant.
(i) Said report must be made under oath and duly
corroborated by one or more disinterested persons.
168. The employing of claimants, their attorneys, or par-
ties in interest, as assistants in making surveys of mineral
claims, will not be allowed.
169. Accuracy Required — Threat of Revocation. — The field
work must be accurately and properly performed and returns
made in conformity with the foregoing instructions. Errors
in the survey must be corrected at the surveyor's own ex-
pense, and if the time required in the examination of the
returns is increased by reason of neglect or carelessness,
he will be required to make an additional deposit for office
work. He will be held to a strict accountability for the
378 CIRCULAR TO APPLICANTS
faithful discharge of his duties, and will be required to
observe fully the requirements and regulations in force as
to making mineral surveys. If found incompetent as a sur-
veyor, careless in the discharge of his duties, or guilty of a
violation of said regulations, his appointment will be
promptly revoked.
BINGER HERMANN,
Commissioner.
Approved.
E. A. HITCHCOCK, Secretary.
*CIRCULAR TO APPLICANTS.
To Applicants for Mineral Survey Orders:
You will observe the following requirements in the con-
duct of your business with the Surveyor General's Office,
the same being based upon the United States mining laws
and circular and special instructions from the Commissioner
of the General Land Office :
1. All applications for survey orders, descriptive re-
ports on placer claims, or certificates of five hundred dollars
expenditure, should be addressed to the Surveyor General
and be signed by the claimants, their agent or attorney.
2. Each application should contain :
(a) The name of the claimant in full, and as it is
desired to appear in the application for patent.
(6) The name of each location embraced in the claim.
(c) The name of the land and mining districts in
which the claim is located.
(d) The name of the United States deputy mineral
surveyor to whom it is desired the order shall be issued.
3. You are required to file with each application for
survey order, a copy of the record of location of the claim,
properly certified by the recorder of the county or mining
district where the claim is situate.
4. The deputy mineral surveyor is required to sur-
vey the claim in strict conformity with or within the lines
of the location upon which the order of survey is based.
You are, therefore, advised before filing your application
to see that your location has been made in compliance with
the law and regulations, and that it properly describes the
claim for which the patent is sought.
The act of Congress of May 10, 1872, expressly provides
that "the location must be distinctly marked on the ground,
so that its boundaries can be readily traced," and "that all
*NOTE. — This circular was part of the Manual of In-
structions issued in 1895, and is unaffected by the Revision
of Land Office Regulations, of July 26, 1901, Ante, p. 31,1,.
CIRCULAR TO APPLICANTS 379
records of mining claims hereafter made shall contain the
name or names of the locators, the date of location, and
such a description of the claim or claims, located by refer-
ence to some natural object or permanent monument, as will
identify the claim."
"These provisions of the law must be strictly complied
with in each case to entitle a claimant to a survey and
patent, and therefore should a claimant under a location
made subsequent to the passage of the mining act of May
10, 1872, who has not complied with said requirements in
regard to marking the location upon the ground, and record-
ing the same, apply for a survey, you will decline to make it."
"The only relief for a party under such circumstances,
will be to make a new location in conformity to law and reg-
ulations, as no case will be approved by this office, unless
these and all other provisions of law are substantially com-
plied with." (See General Land Office circular dated No-
vember 20, 1873.) [Sickel 562.]
5. Par. 99 (now 91), General Land Office circular, of
December 10, 1891, edition December 1, 1894, relating to the
expense of office work connected with the survey of mineral
claims, reads as follows :
"With regard to the platting of the claim and other
office work in the Surveyor General's office, that officer will
make an estimate of the cost thereof, which amount the
claimant will deposit with any assistant United States
treasurer, or designated depository, in favor of the United
States treasurer, to be passed to the credit of the fund cre-
ated by 'individual depositors for surveys of the public
lands,' and file with the Surveyor General duplicate cer-
tificates of such deposits in the usual manner."
6. The various Surveyors General have adopted
schedules of rates for office work, and an estimate of the cost
in any particular case may be had upon application.
Should an applicant deem an estimate excessive, he
will be allowed the right of appeal to the General Land
Office in the usual manner.
In transmitting such an appeal the Surveyor General
should transmit therewith a full report.
7. Should the office work in any case amount to
more than the estimate, or if an amended order is issued,
an additional deposit will be required.
8. In districts where there are no United States de-
positories, you should deposit with the nearest assistant
United States treasurer, or depository, and in all cases im-
mediately forward the original certificate to the Secretary
of the Treasury and the duplicate to the Surveyor General's
Office, retaining the triplicate for your own use and secur-
ity. Under no circumstances will the deposit be made by
the Surveyor General. (See paragraph 5, preceding.)
9. An application for an amended survey order must
be accompanied with a statement setting forth fully the
reasons for the proposed amendment and all the material
facts in the matter.
380 CIRCULAR TO APPLICANTS
10. If, after having obtained a survey order, you
should abandon your purpose of having a survey made, you
can apply the deposit, less the amount estimated for office
expenses already incurred, on a new survey if one is desired.
11. Upon discovery of any error or defect in an or-
der you are requested to return it to the Surveyor General's
Office for correction or amendment.
12. If, after having obtained an order for survey,
you should find that the record of location does not prac-
tically describe the location as staked upon the ground,
you should file a certified copy of an amended location cer-
tificate, correctly describing the claim, and obtain an
amended order for survey. If a relocation of the claim is
made embracing ground not included in the original or-
der, or other material change is made, you will abandon the
original number of the order for survey, and a new order
will be issued in which a number in the current series will
be substituted.
13. The order of approval of surveys of mineral
claims is prescribed by General Land Office circular dated
March 3, 1881, as follows :
"The mining survey first applied for shall have the
priority of action in all its stages in the office of the Sur-
veyor General, including the delivery thereof, over any other
survey of the same ground or any portion thereof.
"The Surveyor General should not order or author-
ize a survey of} a claim which conflicts with one previously
applied for until the survey first applied for has been com-
pleted, examined, approved and platted, and the plats de-
livered.
"When the conflict does not appear until the field notes
of the respective surveys are returned, then the survey
first applied for should be first examined, approved, and plat-
ted, and the plats delivered before the field notes of the
survey last applied for are taken up for examination or plats
constructed.
"When the survey first authorized is not returned
within a reasonable period, and the applicant for a conflict-
Ing survey makes affidavit that he believes (stating the rea-
sons for his belief) that such first applicant has abandoned
his purpose of having a survey made, or is deferring it for
vexatious purposes, to wit, to postpone the subsequent ap-
plicant, the Surveyor General shall give notice of such
charges to such first applicant, and call upon him for an
explanation under oath of the delay. He shall also re-
quire the deputy mineral surveyor to make a full state-
ment in writing, explanatory of the delay ; and if the Sur-
veyor General shall conclude that good and sufficient rea-
sons for such delay do not exist, he shall authorize the
applicant for the conflicting survey to proceed with the
same ; otherwise the order of proceedings shall not be
changed.
"Whenever an applicant for a survey shall have rea-
son to suppose that a conflicting claimant will also apply
SURVEYOR GENERAL'S CIRCULAR. 381
for a survey for patent, he may give a notice in writing
to the Surveyor General particularly describing such con-
flicting claim, and file a copy of the notice of location of
such conflicting claim. In such case the Surveyor General
will not order or authorize any survey of such conflicting
claim until the survey first applied for has been examined,
completed, approved and platted, and the plats delivered."
14. You have the option of employing any United
States deputy mineral surveyor in the district to execute
the order of survey, and must make satisfactory arrange-
ments with such surveyor for the payment of his services
and those of his assistants in making the survey, as the
United States will not be held responsible for the payment
of the same. The duty of the deputy surveyor in any par-
ticular case ceases when he has executed the survey and
returned the same to this office. He is not allowed to pre-
pare for the mining claimant the papers in support of an
application for patent, being precluded from acting either
directly or indirectly as attorney in mineral claims. (Sec.
2334.)
15. You are advised of your right to appeal to the
Commissioner of the General Land Office from the approval
or disapproval of the survey of your claim. The appeal
must be in writing or in print, should set forth in brief and
clear terms the specific points of exception to the ruling
appealed from and should be transmitted through the Sur-
veyor General's Office.
SURVEYOR GENERAL'S CIRCULAR.
The following circular relating to expense of
office work in the Surveyor General's Office in Colo-
rado, dated June 21, 1902, is now in force.
In accordance with paragraph 91, General Land Office
Circular of the United States Mining Laws, approved July
26, 1901, relating to the expense of office work connected
with the survey of mineral claims, which authorizes the
Surveyor General in each district to require a deposit for
platting and other office work for mineral surveys ; it is
directed, the same having been approved June 18, 1902, by
the General Land Office, that on and after July 1, 1902,
the estimated cost of platting and other office work in con-
nection with the survey of mineral claims, be computed
as follows :
For lode claim $30.00
For placer claim 35.00
For mill-site 30.00
382 APPLICATION FOR PATENT.
For mill-site included in one survey with
a lode claim 20.00
For each lode claim within and included
in the survey of a placer claim 20.00
For several lode locations included in one
survey, the first location named 30.00
All other locations included, each 25.00
For several placer locations included in
one survey, the first location named.. 35.00
All other locations included, each 30.00
For affidavit of $500 expenditure of im-
provements, after approval of survey. 5.00
Should an amended order issue, an additional deposit
will be required.
C. C. GOODALE, Surveyor General.
* APPLICATION FOR PATENT.
The following pages are intended to contain the
forms of application and proceedings to obtain pat-
ent, in the order of time in which the several papers
should be made and filed.
Request for Official Survey.
A citizen of the United States, or one who has
declared his intention to become such, or a corpora-
tion chartered within the United States, being the
holder of the possessory title to a lode claim, causes
application for an official survey to be made by an
**A. APPLICATION FOR ORDER FOR SURVEY.
DENVEK, November 1, 1902.
To the U. 8. Surveyor General, District of Colorado, Denver:
SIR : — You are requested to issue an order for an of-
ficial survey of the mining claim of E. H. Cook, upon the
*For many valuable suggestions upon points covered
by this book, especially in this chapter, I am under obliga-
tions to E. E. Chase, Deputy U. S. Mineral Surveyor, Denver,
and Charles J. Christian, Chief of Mineral Division in the
Surveyor General's office ; upon geological points to Ernest
Le Neve Foster, late State Geologist of Colorado, and Frank-
lin R. Carpenter, Ph. D.
**The forms for placer and mill site applications are
substantially the same.
APPLICATION FOR PATENT. 383
Bear lode, located in Cripple Creek mining district, Teller
county, Pueblo land district, Colorado.
I herewith transmit certified copy of the location cer-
tificate of said claim, and have deposited for office fees* on
same $30 to the credit of the treasurer of the United States,
at the First National Bank (U. S. Depository) with request
that duplicate certificate be forwarded to you.
Send order to*E. E. Chase, U. S. Dep. Min. Sur., at
Denver, Colorado Yours respectfully,
E. H. COOK,
Claimant.
By Emilio D. DeSoto, Attorney.
Postoffice address (of Claimant) Denver, Colorado.
Postoffice address (of Attorney) 5(ty Equitable Bldg.,
Denver.
The payment mentioned in the application is not
by draft to the Surveyor General but by a deposit in
a bank recognized as a United States Depository.
Upon payment to such bank the claimant receives
triplicate certificates of deposit, of which he mails
the Original to the secretary of the treasury at Wash-
ington, the Duplicate he mails with the letter (A)
to the Surveyor General (or the bank forwards it)
and the Triplicate he retains.
This certificate is a mere receipt for money and
has no farther value, except where the application
is withdrawn, in which case the unexpended balance
will be allowed to apply on another survey.
In reply to the application (A) the Surveyor
General mails to the U. S. deputy mineral surveyor
designated therein the
B. ORDER FOR SURVEY.
DEPARTMENT OF THE INTERIOR,
OFFICE OF U. S. SURVEYOR GENERAL, >
DENVER, COLO., November 3, 1902. )
E. E. Chase, U. 8. Deputy Mineral Surveyor for the District
of Colorado.
SIR : — You are hereby directed to survey the claim of
E. H. Cook, upon the Bear lode, in Cripple Creek mining dis-
trict, Teller county, Colorado. This survey will be desig-
nated "Survey No. 11,310 Pueblo land district," and must be
made in strict conformity with the location certificate (or
amended location certificate) dated July 28, 1902.
C. C. GOODALE,
U. S. Surveyor General for Colorado.
*For costs in Surveyor General's office, see p. S81,
384 APPLICATION FOR PATENT.
With the order B is enclosed a copy of the loca-
tion certificate made in the Surveyor General's of-
fice from the certified copy filed by applicant.
The numbers of the survey lots were formerly
consecutive in each mineral district, but since the
abolition of mineral districts they are consecutive
throughout the State, beginning with No. 4,501, with
which number the new series was commenced No-
vember 30, 1886.
Survey to Conform to the Record.
This order of survey "B" being received by the
deputy U. S. surveyor designated in "A," he must
proceed in person to the premises, make an actual
survey, and mark each post with the number of the
survey and the number of the corner.
Where there has been a previous survey from
which the certificate of location has been made, it
will be followed.
The copy of location certificate mentioned as in-
closed in "A" must be certified* by the recorder.
The deputy, in making his official survey, must
follow the lines as staked upon the ground.
Changing Lines After Order Received.
The Surveyor General will not allow a serious de-
parture from the lines called for in the location
certificate, without insisting upon the filing of an
amended or relocation certificate in the office of the
recorder of the proper county, and the deposit of a
certified copy of such amended record in the Sur-
veyor General's office, and when such certified copy
has been filed an amended order of survey issues,
in which, if any new ground has been acquired, the
original number of the survey is abandoned and a
new number in\ the current series substituted. An
additional fee of $5 is charged for the amended
order, besides the cost of additional labor, if any,
imposed on the Surveyor General's office.
APPLICATION FOR PATENT. 385
Amending Record After Order Received.
If the certificate be indefinite, or if the end lines
are not parallel, or if not properly tied, or if the cer-
tificate be without date or otherwise irregular, it will
be returned for amendment. Care in the first in-
stance will obviate delays on such grounds.
For form of amended location certificate see
pages 119 and 121.
In surveys upon old lodes (before May 10, 1872)
whose location certificates were not supposed to call
for course or monument, the deputy is presumed to
make his official survey according to the location
and original claim of the locator, but practically it is
made wherever it may be supposed to cover the vein,
or wherever vacant ground can be found to include
in the survey.
In almost all cases of early location (and in
many recent ones) it is advisable to make a formal
relocation before asking for order for survey. This
may save time in the Surveyor General's office and
prevent fatal results in resisting adverse claims.
For instructions as to making survey on the
ground, see LAND OFFICE RULES, pp. 352, 369.
Delay to Proceed With Survey.
The first applicant has priority as long as he
proceeds with diligence. When he fails to perfect,
to the injury of a party desiring to proceed, the steps
to be taken by the latter are indicated in Sec. 13 of
the Circular, p. 380.
The survey being complete the deputy makes
and forwards to the Surveyor General a diagram of
the lode giving its corners, courses, distances, ties,
conflicts, adjoiners and improvements, which is
known as
C. THE PRELIMINARY PLAT.
The plat made by the deputy was formerly
treated as the official plat of the claim, from which
the connected plat of all claims kept by the Surveyor
General was made, but under present practice the
13
386
APPLICATION FOR PATENT.
N
0
O
o/r
O
\
\
\
Sup. NO. U3fo
BEAR LOO£
U&DEP. M/N. >
SURVEY NO. 11,310^ PUEBLO LAND DISTRICT.
APPLICATION FOR PATENT.
387
deputy's plat is only treated as a correction to the
field notes, all official plats now being made in the
office of the Surveyor General.
Along with this diagram or preliminary plat
"C," the deputy forwards to the Surveyor General
his
D. FIELD NOTES,
the following form being arranged to illustrate the
more ordinary complications:
Survey No. 11,310.
Pueblo Land District.
FIELD NOTES
Of the survey of the claim of E. H. Cook, known as the
Bear lode, in Cripple Creek mining district, Teller County,
Colorado.
Section 22, Township 15 South, Range 69 West.
Surveyed under instructions dated November 3, 1902, by
E. E. Chase, U. S. Deputy Mineral Surveyor.
Survey began November 6, 1902, and completed Novem-
ber 6, 1902.
Address of claimant : E. H. COOK, Denver, Colorado.
SURVEY NO. 11310. BEAR LODE.
FEET.
1242.
1440.28
1500.
Beginning at Cor. No. 1.
Identical with Cor. No. 1 of the location.
A spruce post, 5 ft. long, 4 ins. square, set
2 ft. in the ground, with mound of stone, marked
1-11310 whence
The W. % cor. Sec. 22, T. 15 S. R. 69 W. of
the 6th Principal Meridian, bears S. 79° 34' W.
1378.2 ft.
Cor. No. 1, Gottenburg lode (unsurveyed),
Neals Mattson, claimant, bears S. 40° 29' W.
187.67 ft.
A pine 12 ins. dia. blazed and marked B. T.
1-11310 bears S. 7° 25' E. 22 ft.
Mt. Pisgah bears S. 80° 15' W.
Bull Hill bears N. 80° W.
Thence S. 24° 45' W.
Va. 15° 12' E.
To trail, course N. W. and S. E.
Intersect line 1-4, Sur. No. 2560, at N. 38° 52'
W. 76.6 ft. from Cor. No. 1.
To Cor. No. 2. Identical with Cor. No. 2 of the
location.
A granite stone 25x9x6 ins. set 18 ins. in the
ground chiseled 2-11310, whence
Cor. No. 1, Sur. No. 2560, Carnarvon lode,
David Davis et al., claimants, bears N. 88° E.
61.6 ft.
388 APPLICATION FOR PATENT.
North end of bridge over Grassy gulch bears
N. 65° 15' W. 1250 ft.
Thence N. 65° 15' W.
Va. 15° 20' E.
300. To Cor. No. 3. Identical with Cor. No. 3 of lo-
cation.
A cross at corner point, and 3-11310 chiseled
on a granite rock in place, 20x14x6 ft. above the
general level, whence
Cor. No. 2, Sur. No. 2560 bears S. 72° 45' E.
325 ft.
A spruce 16 ins. dia. blazed and marked B.
T. 3-11310 bears S. 58° W. 18 ft.
Thence N. 24° 45' E.
Va. 15° 20' E.
218. Intersect line 4-1, Sur. No. 2560 at N. 38° 52' W.
396.4 ft. from Cor. No. 1.
371.74 To trail, course N. W. and S. E.
1145.62 Intersect line 2-3, Gottenburg lode, at N. 25° 56'
W. 76.26 ft. from Cor. No. 2.
1500. To Cor. No. 4. Identical with Cor. No. 4 of the
location.
A pine post 4.5 ft. long, 5 ins. square, set one
foot in the ground, with mound of earth and
stone, marked 4-11310 whence
A cross chiseled on rock in place, marked B.
R. 4-11310 bears N. 28° 10' E. 58.9 ft.
Thence S. 65° 15' E.
Va. 15° 12' E.
28.5 Intersect line 4-1, Gottenburg lode, at N. 25° 56'
W. 285.13 ft. from Cor. No. 1.
300. To Cor. No. 1, the place of beginning.*
Area.
Total area of Bear lode 10.33 acres
Less area in conflict with
Sur. No. 2560 956 acre
Gottenburg lode 1.363 ncre 2.319 acres
Net area Bear lode 8.011 acres
Location.
This claim is located in the W. V2 Sec. 22, T. 15 S. R.
69 W.
Expenditure of Five Hundred Dollars.
I certify that the value of the labor and improvements
upon this claim placed thereon by the claimant and his
grantors, is not less than five hundred dollars, and that
said improvements consist of
*Adjoining claimants are mentioned as they are reached
in the notes, as they ambit the claim. — Rule 1$.
APPLICATION FOR PATENT. 389
The discovery shaft of the Bear lode, 6x3 ft. 10 ft.
deep in earth and rock, which bears from Cor. No. 2 N. 4°
E. 362 ft.
Value $80.
An incline 7x5 ft. 45 ft. deep in coarse gravel and
rock, timbered, course N. 58° 15' W. dip 62°, the mouth of
which bears from Cor. No. 2 N. 19° 37' B. 1025 ft.
Value $550.
A log shaft-house 14 ft. square, over the discovery
shaft
Value $100.
Two-thirds interest in a tunnel 6.5x5 ft. running due
west 835 ft,, timbered, the mouth of which bears from Cor.
No. 2 N. 51° 15' E. 837 ft.
This tunnel is in course of construction for the de-
velopment of the Bear lode and also for the Carnarvon lode,
Survey No. 2560, David Davis et a?., claimants, the remain-
ing one-third interest therein having already been included
in the estimate of five hundred dollars expenditure upon the
latter claim.
Total value of tunnel, $13,000.
A drift 6.5x4 ft. on the Bear lode, beginning at a point
in tunnel 550 ft. from the mouth, and running N. 20° 20' E.
195 ft. thence N. 54° 15' E. 40 ft. to breast.
Value $2,800.
Other Improvements.
A log cabin 35x28 ft., the S. W. corner of which bears
from Cor. No. 3 N. 30° 44' E. 650 ft.
Said cabin belongs to the claimant herein.
An adit 6x4 ft. running N. 70° 50' W. 100 ft., the
mouth of which bears from Cor. No. 1 S. 58° 12' W. 323 ft,
belonging to Neals Matfson, claimant of the Gottenburg lode.
Instrument.
The survey was made with a Buff <& Berger transit with
Smith's solar attachment. The courses were deflected from
the true meridian as determined by solar observations. The
distances were measured with 500 and 100 ft. steel tapes.
MEMORANDA AS TO CHAINMEN., ETC. (PART OF "D".)
A list of the names of the individuals employed by
E. E. Chase, United States Deputy Mineral Surveyor, to as-
sist in running, measuring, and marking the lines, corners
and boundaries described in the foregoing field notes of the
survey of the mining claim of E. H. Cook, known as the Bear
lode, and showing the respective capacities in which they
acted.
L. E. Lemen, Chainman.
W. A. Jayne, Axman.
AFFIDAVIT OF ASSISTANTS.
STATE OF COLORADO, County of Teller: ss.
We, L. E. Lemen and W. A. Jayne, do solemnly swear
that we assisted E. E. Chase, United States Deputy Mineral
390 APPLICATION FOR PATENT.
Surveyor, in marking the corners and surveying the bound-
aries of the mining claim of E. H. Cook, known as the Bear
lode, represented in the foregoing field notes as having been
surveyed by said Deputy Mineral Surveyor and under his
direction and that said survey has been in all respects, to
the best of our knowledge and belief, faithfully and correctly
executed, and the corner and boundary monuments established
according to law and the instructions furnished by the
United States Surveyor General for Colorado.
L. E. LEMEN, Chainman.
W. A. JAYNBJ Axman.
Subscribed and sworn to by the above named persons
before me this 8th day of November, 1902.
Henry H. Clark,
[SEAL.] Notary Public.
FINAL AFFIDAVIT OF U. S. DEPUTY MINERAL SURVEYOR.
Part of "D."
I, Edwin E. Chase, U. S. deputy mineral surveyor,
do solemnly swear that, in pursuance of instructions received
from the United States Surveyor General for Colorado,
dated November 3, 1902, I have, in strict conformity to the
laws of the United States, the official regulations and in-
structions thereunder, and the instructions of said sur-
veyor general, faithfully and correctly executed the sur-
vey of the mining claim of E. H. Cook, known as the Bear
lode, situate in Cripple Creek Mining District, Teller
County, Colorado, in Section 22, Township No. 15, 8. Range
No. 69 W., designated as Survey No. 11,310, as represented
in the foregoing field notes, which accurately show the
boundaries of said mining claim as distinctly marked by
monuments on the ground, and described in the attached
copy of the location certificate, which was received by me
from the surveyor general with said instructions, and that
all the corners of said survey have been established and
perpetuated in strict accordance with the law, official regu-
lations and instructions thereunder ; and I do further sol-
emnly swear that the foregoing are the true and original
field notes of said survey and my report therein, and that
the labor expended and improvements made upon said min-
ing claim by claimant or his grantors are as therein fully
stated, and that the character, extent, location and itemized
value thereof are specified therein with particularity and
full detail, and that no portion of said labor or improvements
so credited to this claim has been included in the estimate
of expenditure upon any other claim.
EDWIN E. CHASE,
U. S. Deputy Mineral Surveyor.
Subscribed and sworn to by the said Edwin E. Chase,
U. S. deputy mineral surveyor, before me, a notary public,
this 10th day of November, 1902. Henry H. Clark,
[SEAL.] Notary Public.
APPLICATION FOR PATENT. 391
The Preliminary Plat "C" and Field Notes "D"
containing, besides what are strictly the Field Notes,
also the memoranda of improvements, list of helpers,
etc., with certificate and affidavit as above given, are
then forwarded to the Surveyor General, who com-
pares the plat, reviews the notes, etc., and if errors
appear, as they often do, or if he cannot make the
connections agree with his "connected plat," they
are returned for correction; but if correct, the Field
Notes are endorsed as follows:
E. APPROVAL OF SURVEY.
DEPARTMENT OF THE INTERIOR. )
Office of the U. S. Surveyor General, r
DENVER, COLO., Dec. 11, 1902.
I, C. C. Goodale, U. S. Surveyor General for Colorado,
do hereby certify that the foregoing and hereto attached
field notes and return of the survey of the mining claim of
E. H. Cook, known as the Bear lode, situated in Cripple
Creek Mining District, Teller County, Colorado, in Section
22, Township No. 15 8., Range No. 69 W. designated as Sur-
vey No. 11310, executed by E. E. Chase, U. S. deputy min-
eral surveyor, November 6, 1902, under my instructions dated
November 3, 1902, have been critically examined and the nec-
essary corrections and explanations made, and the said field
notes and return, and the survey they describe are hereby
approved. A true copy of the copy* of the location cer-
tificate filed by the applicant for survey is included in the
field notes.
C. C. GOODALE,
U. S. Surveyor General for Colorado.
The field notes "D" endorsed with the official
approval "E" are then bound and kept permanently
for reference in the Surveyor General's office after
he has caused to be made from them
F. THE FINAL PLAT
of which the original is retained in the Surveyor
General's office, one copy is forwarded by the Sur-
veyor General to the proper local land office and two
copies are forwarded to the deputy surveyor.
*This is the copy mailed to the deputy with the order
B, and has now been returned attached to the field notes.
392 APPLICATION FOR PATENT.
The original and each copy of the final plat "F"
is certified by endorsement thereon, as follows:
G. SURVEYOR GENERAL'S APPROVAL OF SURVEY AND
CERTIFICATE OF $500 IMPROVEMENTS.
Date of (amended) location, July 28, 1902. Mineral Sur-
vey No. 11310, Pueblo land district.
Plat of the claim of E. H. Cook, known as the Bear
lode, Cripple Creek mining district, Teller County, Colorado,
containing an area of 8.011 acres. Scale of 200 feet to the
inch. Variation 15° 20' east. Surveyed by E. E. Chase,
U. S. Deputy Mineral Surveyor, Nov. 6, 1902.
The original field notes of the survey of the mining
claim of E. H. Cook, known as the Bear lode, from which
this plat has been made under my direction, have been ex-
amined and approved, and are on file in this office, and I
hereby certify that they furnish such an accurate descrip-
tion of said mining claim as will, if incorporated into a
patent, serve fully to identify the premises, and that such
reference is made therein to natural objects or permanent
monuments as will perpetuate and fix the locus thereof.
I further certify that five hundred dollars' worth of labor
has been expended or improvements made upon said mining
claim by claimant or his grantors and that said improve-
ments consist of the discovery shaft, an incline, a shaft
house, an interest in a tunnel, and a drift, as appears by the
affidavit of the deputy surveyor ; that the location of said
improvements is correctly shown upon this plat, and that
no portion of said labor or improvements has been included
in the estimate of expenditures upon any other claim.
And I further certify that this is a correct plat of said
mining claim made in conformity with said original field
notes of the survey thereof, and the same is hereby ap-
proved. C. C. GOODALE,
U. S. Surveyor General for Colorado.
U. S. Surveyor General's Office, Denver, Colorado.
Dec. 11, 1902.
The amount of improvements is to be found by
the Surveyor General or his deputy, or from the tes-
timony of witnesses. — U. 8. v. King, 83 Fed. 188.
Along with two copies of the diagram "F," with
its endorsement "G" the Surveyor General forwards
to the surveyor fdr claimant the
H. TRANSCRIPT OF FIELD NOTES, otherwise called
"APPROVED FIELD NOTES."
This instrument "H" is verbatim the same as
"D," including all its exhibits, but not the Surveyor
APPLICATION FOR PATENT. 393
General's certificate "G." Instead of the certificate
"G" such transcript is certified as follows:
I. SURVEYOR GENERAL'S CERTIFICATE TO TRAN-
SCRIPT "H."
DEPARTMENT OF THE INTERIOR., )
OFFICE OF U. S. SURVEYOR GENERAL.
Denver. Colorado, Dec. 11, 1902. )
I, C. C. Goodale, U. S. Surveyor General for Colorado,
do hereby certify that the foregoing transcript of the field
notes, return and approval of the survey of the mining
claim of E. H. Cook, known as the Bear lode, situate in Crip-
ple Creek mining district, Teller County, Colorado, in Sec-
tion 22, Township No. 15, S. Range No. 69 west 6th P. M. has
been correctly copied from the originals on file in this office ;
that said field notes furnish such an accurate description
of said mining claim as will, if incorporated into a patent,
serve fully to identify the premises, and that such refer-
ence is made therein to natural objects or permanent monu-
ments as will perpetuate and fix the locus thereof.
And I further certify that five hundred dollars' worth
of labor has been expended or improvements made upon said
mining claim by claimant or his grantors, and that said im-
provements consist of the discovery shaft, an incline, a
shaft house, an interest in a tunnel, and a drift, and that
no portion of said labor or improvements has been in-
cluded in the estimate of expenditures upon any other claim.
I further certify that the plat thereof, filed in the U.
S. land office at Pueblo, is correct and in conformity with
the foregoing field notes.
C. C. GOODALE,
United States Surveyor General for Colorado.
These matters are all preliminary to the appli-
cation for patent proper which is made to the local
land office, these proceedings in the Surveyor Gen-
eral's office being necessary because each lode claim
must be separately surveyed, whereas in case of
agricultural land a party simply enters upon a par-
ticular quarter section which has been already sur-
veyed and platted.
Delivery of Papers to the Attorney.
The above transcript "H" received from the
Surveyor General which is generally termed the "Ap-
proved Field Notes," the deputy then delivers; along
with the plats or diagrams received from the same
office, to the attorney for the claimant, who is sup-
394 APPLICATION FOR PATENT.
posed to supervise the signing and filing of all the
subsequent papers, and takes charge of the applica-
tion from this point, although in fact the further
papers and the superintendence of the posting, etc.,
are. frequently left in charge of the deputy.
Respective Duties of Surveyor and Attorney.
The deputy surveyors are not allowed to act as
attorneys. — Rule 128. The surveyor's services seem
properly to end with the preparation of papers for
the Surveyor General's office and the reception of
papers from that office. These latter he turns over
to the attorney, who makes out or supervises all
papers intended for the land office. The deputy's
aid should not, however, be discarded pending the
application, as with many of the forms he is more
familiar than attorneys generally are. The profes-
sion ought not to object to deputies filling out the
ordinary blanks, especially in cases where no adverse
claim is expected, nor to their attending to posting,
publication, proofs of citizenship, etc., if they will
not attempt to make out the location and relocation
certificates — which are strictly legal papers — the in-
terference of the surveyors in these matters generally
leaving applicants in a position where they seriously
need an attorney's advice, if not already too late
to be of service. And in cases of land office contest
any interference by the surveyor would be officious
and reprehensible.
The claimant or his attorney then prepares four
copies of "K": one for posting on the claim, one to
be attached to proof of posting, one for publication
in newspaper and one for posting in Land Office.
K. NOTICE OF APPLICATION FOR U. S. PATENT.
Survey No. 11310.
U. S. LAND OFFICE, Pueblo, December 15, 1902.
Notice is hereby given that in pursuance of the Act
of Congress approved May 10, 1872, E. H. Cook, whose post-
office is Denver, Colorado, has made application for a pat-
ent for 1500 linear feet on the Bear lode, bearing gold and
silver, the same being 365 feet southwesterly and 1135 feet
APPLICATION FOR PATENT. 395
northeasterly from discovery shaft thereon, with surface
ground 300 feet in width, situate in Cripple Creek mining
district, Teller County, State of Colorado, and described by
the official plat and by the field notes on file in the office
of the register of Pueblo land district, Colorado, as fol-
lows, viz. :
Beginning at corner No. 1, whence the W. % cor. Sec.
22, T. 15 S. II. G9 W. of the 6th Principal Meridian, bears
S. 79° 34' W. 1378.2 feet.
Cor. No. 1, Gottenburg lode (unsurveyed) Neals Matt-
son, claimant, bears S. 40° 29' W. 187.67 ft.
Thence S. 24° 45' W. 1500 ft. to cor. No. 2, whence
cor. No. 1, sur. No. 2560, Carnarvon lode, bears N. 88° E.
61.6 ft. Thence N. 65° 15' W. 300 ft. to cor. No. 3. Thence
N. 24° 45' E. 1500 ft. to cor. No. 4. Thence S. 65° 15'
E. 300 ft. to cor. No. 1, the place of beginning; containing
8.011 acres (exclusive of survey No. 2560 and the Gotten-
burg lode), and forming a portion of the west % of sec-
tion 22, in township 15 S. Range 69 W. of the Sixth Prin-
cipal Meridian. The names of adjoining and conflicting
claims as shown by the plat of survey are the Gottenburg
lode on the northwest and the Carnarvon lode on the south.
Witness: E. H. COOK.
John C. Clark.
B. F. Pinson.
Naming Adjoining Claims.
The Regulations (Rule 39} require the notice to
give "the names of adjoining and conflicting claims
as shown by the Plat of Survey"— 29 L. D. 250— and
by Rules 38 and 149, all conflicts with surveyed
claims, and with unsurveyed claims intended to be
excluded, are required to be shown in the field notes.
One of the notices "K" should be at once posted
on the claim, along with one of the certified dia-
grams received from the Surveyor General, the two
papers being loosely attached, or, as more usual,
placed side by side, in some conspicuous place on the
claim (usually at the discovery shaft) in presence
of two persons who attach their signatures as shown
upon form "K."
Another of the notices "K" is attached to
L. PROOF OF POSTING NOTICE AND DIAGRAM ON THE
CLAIM.
STATE OF COLORADO, Teller County : ss.
John C. Clark and D. F. Pinson, each for himself, and
not one for the other, being first duly sworn according to
law, deposes and says, that he is a citizen of the United
396 APPLICATION FOR PATENT.
States, over the age of twenty-one years, and was present
on the 15th day of December, A. D. 1902, when a plat repre-
senting the claim of E. H. Cook, and certified as correct by
the United States Surveyor General of Colorado, and desig-
nated by him as lot No. 11,310 together with a notice of
the intention of said E. H. Cook to apply for a patent for the
mining claim and premises so platted was posted in a con-
spicuous place upon said mining claim, to wit : upon the
outside of the door of the shaft house at the discovery,
where the same could be easily seen and examined. A copy
of the notice so posted upon said claim is herewith attached
and made a part of this affidavit.
JOHN C. CLARK.
B. F. PlNSON.
Subscribed and sworn to before me this 15th day of
December, A. D. 1902, and I hereby certify that I consider the
above deponents credible and reliable witnesses, and that
the foregoing affidavit and notice were read by each of them
before their signatures were affixed thereto, and the oath
made by them.
[SEAL.] Henry Moody, Notary Public.
The form "L" is subscribed by at least two post-
ing witnesses. The applicant does not sign it, and
should not be one of the two witnesses.
The third notice "K," signed by the applicant,
but not by the witnesses, goes with the second of
the plats received from the Surveyor General (page
$91}, when it is sent with the first set of papers to
the land office, where the register attaches his at-
testing signature, and it will remain posted in the
land office, while its fellow notice and plat are stand-
ing on the claim during the period of publication.
The next paper to be prepared is the
M. APPLICATION FOB PATENT.
STATE OF COLORADO/ Teller County : ss.
Application for patent for the Bear Lode Mining Claim.
To the Register and Receiver of the IT. S. Land Office at
Pueblo, Colorado :
E. H. Cook, whose postoffice address is Denver, Colo-
rado, being duly sworn, according to law, deposes and says :
that in virtue of a compliance with the mining rules, regu-
lations and customs, by himself (and his grantors) he, the
applicant for patent herein, has become the owner of and
is in the actual, quiet and undisturbed possession of 1500
linear feet of the Bear vein, lode or deposit, bearing gold and
silver, together with surface ground 300 feet in width, for
the convenient working thereof as allowed by local rules and
APPLICATION FOR PATENT. 397
customs of miners, said mineral claim, vein, lode or deposit
and surface ground being situate in Cripple Creek mining
district, County of Teller, and State of Colorado, as more
particularly set forth and described in the official field notes
of survey thereof, hereto attached, dated December 11, 1902,
find in the official plat of said survey, now posted conspicu-
ously upon said mining claim or premises, a copy of which
is filed herewith. Deponent further states that the facts
relative to the right of possession of himself to said min-
ing claim, vein, lode, or deposit and surface ground so sur-
veyed and platted, are substantially as follows, to wit : The
Bear lode was discovered on or about the fourth day of July,
A. D. 1897, by James A. McFadden, who afterwards, and be-
fore the twenty-eighth day of July, A. D. 1897, completed
a location of the same as a mining claim of the length and
width aforesaid, having substantially located the same and
otherwise complied with all local rules and regulations,
the laws of the State of Colorado and of the United States
relating to mining claims.
The said discoverer and locator conveyed all his inter-
est in the claim to Chas. O. Baxter and Frank M. Taylor,
who by divers intermediate conveyances transferred the same
to applicant, who thereupon took possession and is the sole
present owner, all of which will more fully appear by refer-
ence to the copy of the original record of location and the
abstract of title herewith filed ; the value of the labor done
and improvements made upon said Bear lode mining claim
by the applicant (and his grantors) being equal to the sum
of five hundred dollars. Said improvements consist of dis-
covery shaft, an incline, shaft house, a drift and two-thirds
interest in tunnel (but expressly excepting and excluding
from this application all that portion of the ground em-
braced in mining claim or survey designated as lot No. 2560
and the claim of Neals Mattson on the Gottenburg lode) in
consideration of which facts and in conformity with the
provisions of Chapter VI, Title 32 of the Revised Statutes
of the United States, application is hereby made for and
in behalf of said E. H. Cook for a patent from the United
States for the said Bear lode mining claim, vein, lode or de-
posit and the surface ground so officially surveyed and plat-
ted. E. H. COOK.
Subscribed and sworn to before me this 16tJi day of
December, A. D. 1902, and I hereby certify that I consider
the above deponent a credible and reliable person, and the
foregoing affidavit, to which was attached the field notes of
survey of the Bear lode mining claim, was read and exam-
ined by him before his signature was affixed thereto and
the oath made by him. Henry Moody,
[SEAL.] Notary Public.
Where an application is presented in the land
office before the plat and notice have been posted on
the claim as required by R. S. § 2325, such application
398 APPLICATION FOR PATENT.
has been held void al) initio. — 1 L. D. 551 ; Rev. Ed.
545.
This application "M" is attached to the tran-
script "H," commonly styled "The Approved Field
Notes."
At the same time there should be prepared:
N.— The abstract of title.
O. — The proof of citizenship.
P. — The publisher's agreement.
Q. — The publication notice — which, with those
already referred to, complete the first set of papers,
to wit:
N. ABSTRACT OF TITLE.
STATE OF COLORADO, County of Teller: ss.
I, Frank P. Mannioc, Clerk and ex-officio Recorder of
said County, do hereby certify that the foregoing is a true,
full and correct abstract of the title of the Bear lode therein
described, as the same appears of record in nay office, and
shows all location certificates, deeds or other instruments
appearing of record purporting to convey or affect the same.
Witness my hand and the seal of said County, this 16th
day of December , A. D. 1902.
FRANK P. MANNIX,
[County Seal.] Recorder.
It should contain a memorandum of the location
certificate, including any amended location certifi-
cates, and the usual memoranda of the deeds and
other instruments appearing of record in his office,
and should be brought up to and include the date of
application, and should be certified to by the Re-
corder.— Rule 42.
The abstract often contains a copy of the loca-
tion certificate, and in such case the recorder's cer-
tificate should be varied to state that it contains a
true copy thereof; but the better practice is to mail
with the application papers a certified copy of the
location certificate (or certificates if there be more
than one), separately, and after the filing of the
"application papers" but during the period of pub-
lication to send the abstract proper, which in such
case will contain only the memorandum of the loca-
tion certificate with names, dates, etc., in the same
APPLICATION FOR PATENT. 399
manner as the memoranda of the separate deeds.
This precaution is to make the abstract certainly
include the 'date of the filing of the application.
When the applicant for patent is the original
locator himself (and there have been no transfers of
title), he should file with the application papers a
certified copy of his location certificate, with his
affidavit that he has disposed of no interest in the
claim, or during the period of publication as before
advised, should forward an abstract containing a
memorandum of such location certificate certified as
follows :
STATE OF COLORADO, County of Teller: ss.
I, Frank P. Mannix, Clerk and ex-officio Recorder of
said County, do hereby certify that the foregoing is a full,
true and correct abstract of the title to the Bear lode therein
described, as the same appears of record in said office, and
that there are no deeds or other instruments appearing of
record purporting to convey or affect the same except the
certificate of location therein referred to.
Witness my hand, etc., as a~bove.
The Abstract Should Show Title in Applicant.
— Rule 42. If it show title in several co-owners, all
such co-owners should join as applicants. If it show
that there were co-owners who had been forfeited out
for non-performance of annual labor, this is con-
sidered equivalent to an abstract showing transfer
by deed from them to the applicant. A break in the
chain of title behind a relocation made in the usual
form to take up abandoned claims may be disre-
garded.— 10 L. 0. 119. But the Department will take
notice of a void Sheriff's deed or other break in the
title asserted and relied on by the applicant. — 21
L. D. 544. Where the names of co-tenants are in-
advertently omitted in the application they have been
allowed to bo supplied and the patent issued to all.
—10 L. O. 206; but this is irregular.
O. PROOF OF CITIZENSHIP.
STATE OF COLORADO, County of Teller: ss.
E. H. Cook, being first duly sworn according to law, de-
poses and says that he is the applicant for patent for the
Bear Lode Mining Claim, situate in Cripple Creek Mining
400 APPLICATION FOR PATENT.
District, County of Teller, State of Colorado ;* that he is a
native born citizen of the United States, born in the County
of , State of New York, in the year ,
and is now a resident of Denver, State of Colorado.
E. H. COOK.
Subscribed and sworn to before me this 15th day of
December, A. D. 1902. Henry Moody,
[SEAL.] Notary Public.
When the applicant is not a native citizen the
form after the * will proceed:
That he is a naturalized citizen of the United States ;
took out his final naturalization papers in the Circuit Court
of the United States at Denver, Colorado, on the first day of
May, 1880, and is now a resident of Kokomo, State of Col-
orado.
If the applicant has not taken out his final pa-
pers, it will show, as required by Rule 68, when,
where and in what Court he took out his first pa-
pers:
That he declared his intention of becoming a citizen
of the United States in the Circuit Court of the United
States, at Denver, Colorado, on the first day of May, 1899, and
is now a resident of Cheyenne, State of Wyoming.
If the applicant claims under his father's nat-
uralization, it will proceed:
That he is a naturalized citizen of the United States,
born in the Republic of Peru, and that he came to the
United States a minor, under the age of 21 years, and has
ever since resided in the United States, and that his father
took out his final papers and became a naturalized citizen
of the United States during the minority of affiant, whereby
affiant became a naturalized citizen under the terms of Sec-
tion 2172 of the Revised Statutes of the United States, and
is now a resident of Aspen, County of Pitkin, State of Colo-
rado.
Serving in the army or navy does not complete
citizenship of itself. Soldiers must comply with
§ 2166 and sailors with § 2174 of the R. S. or 28
Stat. L. p. 124.
Where there are several applicants each makes
his own affidavit of citizenship.
Affidavit, Where Made.
By Act of April 26, 1882, the affidavit of citizen-
ship, where the applicant resides outside of the land
APPLICATION FOR PATENT, 401
district, may be made anywhere in the United States,
before any notary or Clerk of Court of Record where
the applicant may reside or happen to be found.
Proof by Two Witnesses.
When the affidavit of the applicant cannot be
procured the land office will allow proof of his citi-
zenship by the affidavits of two disinterested wit-
nesses.— Rule 70.
Citizenship of Corporation.
A corporation must file a copy of its charter or
articles of association, certified to by the Secretary
of iState of the State within which it is operating,
whether it be a domestic corporation or a corpora-
tion of some other State doing business in that State.
— Rule 66; 27 L. D. 351.
Or it may file a "Certificate of Incorporation"
and the Land Office will not pass on the point that
it is not by its articles a corporation which could
lawfully take title to mineral lands.— 20 L. D. 116; 22
L. D. 83.
Entry secured by fraudulently suppressing the
fact that it was for the benefit of an alien corpora-
tion will be cancelled and purchase price will not
be refunded.— 20 L. D. 379.
Proof of Non-Abandonment.
By circular of the General Land Office of March
24, 1887, 8 L. D. 505, it was ruled that the register
should require upon each application satisfactory
proof of compliance with the annual labor law; but
by the Revision of 1901 such proof is no longer re-
quired and the question is left by the -Department
to be settled by adverse claimants in the courts. —
Rule 55; 29 L. D. 302, 401; 31 Id. 69. But a delay
to make entry until beyond the end of the calendar
year after publication, Held fatal to the entry, where
relocation for failure to do anual labor is alleged by
protest.— 31 L. D. 69.
402 APPLICATION FOR PATENT.
P. PUBLISHER'S CONTRACT.
I, the undersigned, publisher and proprietor of the
Cripple Creek Star,, a weekly newspaper published in Cripple
Creek, Teller County, State of Colorado, hereby agree to pub-
lish a notice dated TJ. S. Land Office, Pueblo, Colo., Decem-
ber 15, 1902, required by Act of Congress, approved May 10th,
1872, of the intention of E. H. Cook to apply for a patent for
his claim on the Bear Lode, situate in Cripple Creek Mining
District, County of Teller, State aforesaid, and to hold the
said E. H. Cook alone responsible for the amount of our bill
for publishing the same.
And it is hereby expressly stipulated and agreed that
no claim shall be made against the government of the
United States, or its officers or agents, for such publication.
Witness my hand this 16th day of December, A. D. 1902.
P. H. Knowlton, Publisher.
In What Newspaper.
The notice must be published in a newspaper
to be by the Register designated as published near-
est to the claim.— R. 8. § 2325; 11, L. D. 138. When
there are two or more in the nearest town, either
may be designated.— Cameron v. Seaman, 13 M. R.
584; 2 L. D. 758, The practice of the Register, where
two or more local papers in the same town are pub-
lished, is to designate that one which the attorney
may suggest. The distance is to be calculated not
by an air line, but by the most usually traveled route.
The language of the Act allows much discretion in
the designation of the newspaper. — 17 L. D. 560; 26
Id. 145.
The notice must be continued in the same paper
and cannot be shifted from the daily to the weekly
edition.— 3 L. 0. 18.
What Constitutes a Newspaper.
It must be a reputable newspaper of general
circulation.— 2 L. D. 205; 758. The Register has a
discretion in deciding what constitutes such a news-
paper.—8 L. 0. 156; 3 L. 0. 36; 10 L. D. 655; 26 Id.
14o.
Q. PUBLICATION NOTICE.
This is verbatim the same as "K" and amounts
to a fourth copy of "K," except that it is not signed
by the applicant but is forwarded in blank to the
APPLICATION FOR PATENT. 403
land office where it receives the application number,
is signed by the Register and returned by him to
the attorney for claimant or direct to the printer.
It usually contains at the foot the dates of the
first and last publication; but erroneous statement
of last date will not excuse failure to file adverse
within statutory period. — 25 L. D. 550.
Manner and Period of Publication.
The notice "Q" must be published for 61 days
in a daily, or nine consecutive times in a weekly
paper — 29 L. D. 230; Rule 45; and while the notice
is going through its newspaper publication, it also
stands posted on the claim, and tacked to the bulletin
of the land office. Each of these methods of publi-
cation is mandatory and essential. See p. 437.
First Set or "Application" Papers.
The above mentioned papers, constituting the
following list, to wit:
F. — The final plat — one copy.
H. — The approved field notes.
K. — The copy intended for posting in land office.
K. — Second copy with "L" proof of posting at-
tached.
M. — Application for patent.
N.— Abstract of title.
O. — Proof of citizenship.
P. — Publisher's agreement.
Q. — Publication notice — which complete the first
set of papers commonly called the "application pa-
pers," are all forwarded at one time by the attorney
to the local land office.
Upon receipt of the application papers, accom-
panied by the filing fee of ten dollars, the register
gives the papers an application number, makes a rec-
ord of the application in the nature of an index,
attests the posting of the notice "K" in his office,
affixing the date, and returns to the attorney for
claimant the notice for publication "Q" headed with
the application number, or sends it direct to the
404 APPLICATION FOR PATENTS
proper paper for publication. The return of the pub-
lication notice to the attorney or paper is an implied
approval of the publisher's contract and a sufficient
designation of that paper.
RECAPITULATION.
It may be convenient to review the proceedings
at this point.
The papers A to I, inclusive, have performed
their office.
A, the request for survey; C, the preliminary
plat; D, the field notes, and P, the final plat, remain
with the Surveyor General.
B, the order for survey, remains in the hands of
the deputy, being his voucher against the applicant
for work done under it.
E, G, and I are mere certificates endorsed on
other papers.
The transcript *H (the approved field notes),
has been attached to the application M, and both
mailed to the local land office.
One copy of the plat F has been forwarded by
the Surveyor General to the local land office to be
kept on file; one copy has been posted on the claim,
and one copy forwarded to the local land office as
one of the application papers.
One of the notices K has been posted on the
claim; one has been attached to the proof of post-
ing; one has been posted in the land office, and one,
Q, remains to be published or is being published.
L, the proof of posting; M, the application; and
P, the publisher's agreement, have been filefl in the
land office. ,
N, the abstract, and O, the proof of citizenship,
have been filed, or if not, may be filed at any time
pending the publication.
The Second Set or "Final Entry" Papers which re-
main to be filed after the publication is complete, con-
sist of:
APPLICATION FOR PATENT. 405
R. — Proof of continuous posting.
S. — Proof of publication.
T. — Proof of sums paid.
U. — Application to purchase, to wit:
When the period of publication is complete,
proof of the notice having remained on the claim and
of the publication are made as follows:
R. PROOF THAT PLAT AND NOTICE REMAINED POSTED ON
CLAIM DURING TIME OF PUBLICATION.
STATE OF COLORADO, County of Teller: ss.
E. H. Cook, being first duly sworn according to law,
deposes and says, that he is the claimant of the Bear lode
mining claim, Cripple Creek Mining District, Teller County,
State of Colorado, the official plat of which premises to-
gether with the notice of his intention to apply for a pat-
ent therefor was posted thereon, on the 15th day of Decem-
ber, A. D. 1902, as fully set forth and described in the affi-
davit of John C. Clark and B. F. Pin-son f dated the 15th day
of December, A. D. 1902, which affidavit was duly filed in
the office of the register, at Pueblo, in this State ; and that
the plat and notice so mentioned and described, remained
continuously and conspicuously posted upon said mining
claim from the 15th day of December , A. D. 1902, until and
including the 19th day of February, A. D. 1903, including the
sixty days' period during which notice of said application
for patent was published in the newspaper. j^ jj COOK.
Subscribed and sworn to before me, this 20th day of
February, A. D. 1903, and I hereby certify that the foregoing
affidavit was read to the said E. H. Cook, previous to his
name being subscribed thereto. D. C. Crawford,
[SEAL.] Notary Public.
This affidavit of continuous posting the claim-
ant may make from information derived from hear-
say.— 9 L. D. 503.
S. CERTIFICATE OF PUBLICATION.
I, P. H. Knowlton, do certify that I am
Publisher of the Cripple Creek Star, a
weekly newspaper published in Cripple
Creek, in the County of Teller, and State
(Copy of
publication n o
tice cut from
of Colorado, and that the annexed notice
was published in said paper once each and
™cf0ri every week for nine consecutive weeks,
50 the first publication being on the 18th
day of December, A. D. 1902, and the last
publication being on the 12th day of Feb-
ruary, A. D. 1903. p H KNQWLTON.
406 APPLICATION FOR PATENT.
The publisher's re-
ceipted bill is com-
monly attached to this
Subscribed and sworn to before
me this 20th day of February, A. D.
1903. Henry Moody,
[SEAL.] Notary Public.
blank.
Together with these proofs of publication and
posting, the claimant forwards, under one of the in-
structions of the department, the following:
T. PROOF OF SUMS PAID.
STATE OF COLORADO,, County of Teller: ss.
E. H. Cook, having been first duly sworn according to
law, deposes and says that he is a citizen of the United
States, over the age of twenty-one years ; that he is the
applicant for patent to 1500 feet upon the Bear Lode, in
Cripple Creek Mining District, Teller County, Colorado ;
that in the prosecution of such application he has paid the
following sums of money, viz. :
For office work in the Surveyor General's office $ 30
To E. E. Chase, Deputy Surveyor, for surveying and
platting 50
To Register and Receiver, for filing application in Land
Office 10
To the Cripple Creek tftar, for publishing notice of ap-
plication V 20
To the Receiver of the local Land Office, for land 45
$155
E. H. COOK.
Subscribed and sworn to before me this 20th day of
February, A. D. 1903. 7). C. Crawford,
[SEAL.] Notary Public.
These are the official costs only; it does not in-
clude attorney's fees, notary's charges, nor cost of
abstract. The total expense of patenting one lode,
without mill site, varies from $150 to $250.
The filing of this paper, T, completes the pre-
requisites of entry and payment except the formal
application to purchase, U, and the register's proofs,
V and W.
U. APPLICATION TO PURCHASE.
To the Register and Receiver United States Land Office, at
Pueblo, Colorado.
The undersigned, claimant under the provisions of the
Revised Statutes of the United States, Chapter VI, Title 32,
and legislation supplemental thereto, hereby applies to pur-
APPLICATION FOR PATENT. 407
chase that Mining Claim known as the Bear lode, located in
the west half of section 22, township No. 15, S. Range No.
09, west of the sixth principal meridian, designated as lot
No. 11310, said lot No. 11310 extending 1,500 feet in length
along said Bear vein or lode, but expressly excepting and
excluding from this application all that portion of the ground
embraced in mining claim or survey designated as lot No.
2560, the Carnarvon lode, and the claim of Neals Matt son,
on the Gottenburg lode, and also all that portion of any vein
or lode, the top or apex of which lies inside of said excluded
ground, said lode mining- claim embracing 8.011 acres in the
Cripple Creek Mining District, in the County of Teller, and
State of Colorado, as shown by the survey thereof, and
hereby agrees to pay therefor forty-five dollars, being the
legal price thereof.
Dated Pueblo, February W, 1903. E. H. COOK.
I, John R. Gordon, Register of the land office at Pueblo,
Colorado, do hereby certify that the aforesaid mining claim
or lot No. 11310 as applied for above, is subject to entry
by the above named applicant ; the area of said lode mining
claim being 8.011 acres and the legal price thereof forty-five
dollars.
February 20, 1903. JOHN R. GORDON,,
U does not need to be verified. Register.
Excluded Areas.
The notice and the application must show what
areas are excluded and if the entry be of any such
excluded areas a republication and posting will be
ordered.— 22 L. D. Ill; 28 Id. 436.
Entry may embrace land excluded from applica-
tion, but which, on adverse proceedings, was awarded
to applicant. — 29 L. D. 71. May be amended to in-
clude a tract at first excluded on account of defective
title.— 29 Id. 287. Will not be allowed for land em-
braced in a prior subsisting entry. — 29 Id. 62.
Entry — Cancellation — Relinquishment.
Entry cancelled without notice must be rein-
stated.— 23 L. D. 113; 31 Id. 51. Cancellation does
not subject claim to relocation. — 23 Id. 113; but repub-
lication and posting is required. — 29 Id. 470. Reinstate-
ment will not be made when entryman has filed ad-
verse against subsequent application. — 26 Id. 60S.
Entry may stand on proper proof where title is sub-
sequently acquired. — 29 Id. 208. Entry allowed by
mistake pending adverse, will be cancelled. — SO Id.
408 APPLICATION FOR PATENT.
298. A relinquishment during publication and be-
fore adverse claim is filed runs to the government
though in terms made for the benefit of another
claimant and the ground relinquished cannot there-
after be made the basis of an adverse. — 27 Id. 369.
Register's Proof Completes Application.
Upon receipt of the final entry papers (R — U)
accompanied by the purchase money (all other pa-
pers being regular) the Register makes his certificate
that the notice "K" remained posted on his bulletin
during the period that its duplicates were being
posted on the claim and published, and makes his
final certificate of entry.
V. REGISTER'S CERTIFICATE OF POSTING NOTICE FOR
SIXTY DAYS.
[Attached to Bulletin copy of K.]
UNITED STATES LAND OFFICE, )
At Pueblo, Colorado.
February 21, 1903. )
I hereby certify that the official plat of the Bear lode,
designated by the surveyor general as lot No. 11310 was
filed in this office on the 16th day of December, A. D. 1902,
and that a notice, of which the attached notice is a copy, of
the intention of E. H. Cook to apply for a patent for the
mining claim or premises embraced by said plat, and 'de-
scribed in the field notes of survey thereof filed in said ap-
plication, was posted conspicuously in this office on the 16th
day of December, 1902, and remained so posted until
the nth day of February, 1903, being the full period of sixty
consecutive days during the period of publication as re-
quired by law ; and that said plat remained in this office dur-
ing that time subject to examination and that no adverse
claim thereto has been filed. JOHN R. GORDON,
Register.
It is important that this bulletin notice, "K,"
should have been properly posted. The land office
holds that it is essential that the three notices, to
wit: by newspaper, by posting and by the bulletin
should be concurrent, and in a case where the bulle-
tin was not posted till the third day of advertise-
ment they allowed an adverse on the 63rd day, hold-
ing that the double and contemporaneous publica-
tion was not until such day complete. The bulletin
APPLICATION FOR PATENT. 400
must be posted 60 days, and the newspaper notice
does not begin to run until the bulletin is posted. —
5 L. D. 510; 17 L. D. 282. If any one of the three
notices is insufficient they are all rendered value-
less.—29 L. D. 467.
W. REGISTER'S FINAL CERTIFICATE OF ENTRY.
Mineral Entry No. 2,000. UNITED STATES LAND OFFICE, )
Lot No. 11.310. At Pueblo, Colorado.
February 21, 1903. )
It is hereby certified that in pursuance of the pro-
visions of the Revised Statutes of the United States, Chap-
ter VI, Title 32, and legislation supplemental thereto, E. H.
Cook, whose postoffice address is Denver, Colorado, on this
day purchased that mining claim known as the Bear lode, in
the west % of section 22, in township No. 15, S. Range No.
69 W. of the sixth principal meridian, designated as lot No.
11,310, said lot No. 11,310 extending 1,500 feet in length
along said Bear vein or lode, expressly excepting and exclud-
ing from said purchase all that portion of the ground em-
braced in mining claim or survey designated as lot No. 2560,
Carnarvon lode ; also the claim of Neals Mattson, on the Got-
tenburg lode, and also all that portion of any vein or lode,
the top or apex of which lies inside of said excluded ground ;
sa'id lode mining claim, as entered, embracing 8.011 acres
in the Cripple Creek mining district in the County of Teller
and State of Colorado, as shown by the plat and field notes
of survey thereof, for which the said party first above
named this day made payment to the receiver in full,
amounting to the sum of forty-five dollars.
Now, therefore, be it known that upon the presentation
of this certificate to the Commissioner of the General Land
Oflice, together with the plat and field notes of survey of
said claim and the proofs required by law, a patent shall
issue thereupon to the said E. H. Cook if all be found regu-
lar. JOHN R. GORDON,
Register.
Receiver's Receipt.
At the same time the receiver issues in dupli-
cate the receiver's receipt and files the original with
the papers, and delivers or sends the duplicate to
the claimant, and all the preliminary proceedings
are now complete. This receiver's receipt should be
kept by the claimant until notice from the local land
office that patent has arrived at such local land of-
fice, as its surrender is required before the patent is
delivered. If mislaid, proof of loss must be made.
410 APPLICATION FOR PATENT.
X. AFFIDAVIT OF LOST RECEIVER'S RECEIPT.
STATE OF COLORADO, County of Teller: ss.
In the Pueblo Land District, Colorado.
Before me, the subscriber, register of said land office,
personally appeared John Best, who, being duly sworn, saith
that he is the* applicant for patent on the Brelau lode min-
ing claim survey lot No. 7000 in Cripple Creek mining dis-
trict, County of Teller f State of Colorado, and the same
person who as such applicant made entry of said survey lot
in the said land office on or about the first day of June, A.
D. 1902. That on the date of said entry he received the du-
plicate receiver's receipt therefor. That said duplicate re-
ceiver's receipt is lost or mislaid. That deponent has made
diligent search among his papers and can not find the same,
and can not therefore surrender the same. That he never
assigned or purported to assign said receiver's receipt and
still remains the owner and in possession of the land
therein described and is the party entitled to receive the
patent therefor.* Wherefore affiant asks that the patent
to said survey lot be delivered to him without the surrender
of said receiver's receipt upon this his affidavit of loss.
JOHN BEST.
Sworn and subscribed to before me this eighth day of
January, A. D. 1903. John R. Gordon,
Register.
If the title has been transferred insert between
the * *
"Owner by purchase of the Brelau lode, etc. (descrip-
tion). That he purchased the same since the same was en-
tered for patent by deed from the party who made the entry.
That he never received the duplicate receiver's receipt from
his vendor, and does not know where the same can be found.
That he has made diligent inquiry of the attorney and sur-
veyor employed in the application for patent to said lode,
who declare that they never had the same in their possession,
and that the whereabouts of affiant's vendor are unknown
to affiant." Wherefore, etc.
After Entry.
All proceedings after entry are ministerial. The
papers in the local land office, except the copy of
plat F, 'furnished by the surveyor general, are for-
warded to the General Land Office at Washington
and the patent issues in due course usually arriving
within one year, the department being behind in its
office work; but this is upon the supposition that
all the preliminary steps have been regular, and that
the land was in fact open to entry — if material errors
APPLICATION FOR PATENT. 411
or defects are discovered after the receiver's receipt
issues, it may be, and often is, recalled and cancelled,
and if land entered as agricultural is shown to be
mineral at any time before patent issues, the same
result follows.— 7 L. 0. 23.
Corrections and Additional Proofs.
The entire series of papers are reviewed at
Washington and if irregularities, such as errors in
survey, insufficient proof of improvements, errors in
affidavits, etc., are discovered, the local land office
is notified from the General Land Office, and (unless
the mistake is a fatal one) the claimant or his at-
torney is, by letter from the local land office, notified
to supply the defect by further affidavit or certificate,
as the case may be.
Government Price $5 Per Acre.
The application papers (p. 403) are accompanied
by the money to be paid for the land, being $5 for
each acre or fractional part of an acre of the surface
ground. The extreme limit of claim in Colorado be-
ing 1,500 feet long by 300 feet Abroad, such claim
contains 10 and 33-100 acres; the fractional acre be-
ing paid for as one acre, makes the claim equivalent
to 11 acres. The amount paid will therefore vary
between $5 and $55 for a single lode location with no
mill site. The price of placer ground is $2.50 per
acre, or fraction of an acre.
Acreage of Lode Claims.
In computing this acreage all interfering surveys
which have been deducted, are excluded. The pay-
ment is based on the amount of claimed surface
ground covered by the survey and not excluded in
favor of prior applications.
Claim 1500 x 600 feet contains 20.66 acres.
1500 x 300 " 10.33 "
1500 x 150 " 5.16 "
3000 x 50 " 3.44 "
1400 x 50 " 1.60 "
1600 x 50 " " 1.83 "
412 APPLICATION FOR PATENT.
Affidavits— Where Made.
All affidavits made in support of the application
must be made within the land district. An exception
to this is the publisher's affidavit (S) where the pa-
per "nearest the claim" happens to be a newspaper
in another land district. Another exception is the
affidavit of citizenship. Adverse claim may be veri-
fied in certain cases beyond the land district. — See
page 468.
It has been ruled that any officer, as for instance
the Clerk of the U. S. Court, whose jurisdiction
extends over the territory of the land district, may
administer the oath anywhere within his jurisdic-
tion.—3 L. 0. 195.
Before What Officer.
They may be made before a notary public or any
officer authorized to administer oaths. Among such
officers are the register and receiver of the proper
district. Where allowed outside the district they
should be taken before a notary or the clerk of a
court of record. In all cases the official seal should
be attached.— Rule 69.
Where the Application Is Joint, any one co-
owner may make all the affidavits required, on behalf
of his co-owners as well as on his own behalf, except
the affidavit of citizenship. — See p. 400.
When a claim is owned in common, it is some-
times convenient to have a quit-claim executed by
the others to one of their number, placing the title
for the time being, in his name, the grantors secur-
ing themselves by title bond or otherwise.
Application by Agent.
"Provided, That where the claimant for a patent is not
a resident of or within the land district wherein the vein,
lode, ledge, or deposit sought to be patented is located, the
application for patent and the affidavits required to be made
in this section by the claimant for such patent may be made
by his, her, or its authorized agent, where said agent is con-
versant with the facts sought to be established by said affi-
davits : * * * — A. C. Jan. 22, 1880.
APPLICATION FOR PATENT. 413
It does not seem that under the above Act a
resident owner can apply at all by agent — unless at
least temporarily absent. — 8 L. D. 223. And the fact
of absence should be recited in the power of attorney.
In other words, he cannot delegate the power while
he is present, by mere caprice or desire to avoid
personal attention to the matter.
Where an application is by agency there must be
a written power of attorney, the original of which
is filed in the Land Office.
•Y. FORM OF POWER OF ATTORNEY.
KNOW ALL MEN BY THESE PRESENTS, That I, John
Glenn, of Baltimore, State of Maryland, a citizen of the
United States, do hereby constitute and appoint J. J. Vivian,
of Idaho Springs, County of Clear Creek, State of Colorado,
my attorney-in-fact, for me and in my name, to make
application for patent of the United States, in the proper
land office, upon the Dragon lode mining claim, 1,500 feet
in length by 150 feet in width, situate on Republican Moun-
tain in Griffith mining district, County of Clear Creek, State
of Colorado, and to make or cause to be made, any and
all surveys, relocations, affidavits, and all necessary papers
which may be required in the prosecution of such application,
or to perfect or protect the title thereto, and to do all acts
and things in and about the premises which I myself, if
present, could do, until patent is finally delivered. Also in
case of adverse claim, I authorize him to employ counsel
and take all measures necessary to defend against said ad-
verse claim or suit in support thereof, either in the land
office or in judicial proceedings, and in such judicial proceed-
ings, to execute any bonds or other papers, and verify all
proceedings, to and including appeal or writ of error.
Witness my hand and seal this third day of February,
A. D. 1903. JOHN GLENN. [SEAL.]
Acknowledge according to form on page 2^2.
The deputy surveyor cannot accept such power
nor act directly or indirectly as agent. — Rule 93.
In Each Affidavit Signed by Agent should be in-
serted, by way of precaution, the following clause:
"Affiant further saith that the said claimant is not a
resident in the land district in which said claim is situate,
but resides at Tallahassee, State of Florida, and that affi-
ant is the duiy authorized agent of said claimant, and is
conversant with the facts sought to be established by snirl
affidavit."
414 APPLICATION FOR PATENT.
Where a Corporation Applies all papers are
signed by the president, or other officer designated
as stated in the next paragraph; but more usually
(and advisably), it executes the form Y to some resi-
dent person or agent.— See p. 401.
Where it does not adopt the latter plan the land
office practice requires proof that the officer purport-
ing to act for the company was authorized to make
the application. Such proof may consist of a copy of
the resolution of the board of directors instructing
some designated officer to apply for patent to the
claim or claims mentioned, certified by the secretary,
under the corporate seal.
Mill Site Application.
Where a mill site is applied for separately it
must be upon land occupied by mill or reduction
works (p. 216). In such case the forms herein
given are sufficient, changing the word lode to mill
site, and adding the two forms next following. The
price per acre is also the same (p. 212). The appli-
cations for mill sites alone are rare, they being usu-
ally applied for in connection with a lode.
But the Land Office has ruled that the owner of
a lode already gone to patent, who then held or
afterwards secured title to a mill site which he uses
as appurtenant to his mine, may apply for a patent
to the mill site later by independent application,
upon showing the use of the mill site in connection
with the lode, the same as if he had originally joined
both in one application.— 28 L. D. 1/96.
Z. NON-MINERAL AFFIDAVIT.
STATE OF COLORADO. County of Clear Creek: ss.
Clarence Jarbeau and Benj. C. Catren, each of law-
ful age and residents of Georgetown, in said County, being
first duly sworn, each for himself, and not one for the other,
saith : That he is a citizen of the United States ; that he
is well acquainted with the Annie Boyd mill site claim of
John A. Emery, situate in Queens mining district, in said
County, upon which said John A. Emery has applied for pat-
ent of the United States, and knows the character of said
described land, havinng frequently been actually upon the
APPLICATION FOR PATENT. 415
same ; that his knowledge of the land is such as to enable
him to testify understandingly with regard thereto ; that
there is not to his knowledge within the limits thereof, any
vein or lode of quartz or other rock in place, bearing gold,
silver, cinnabar, lead, tin or copper, or any placer, cement,
or other valuable mineral deposits, or any deposit of coal ;
that the land contains no salt spring, or deposits of salt
in any form sufficient to render it chiefly valuable therefor ;
that no portion of said land is claimed for mining purposes
under the local customs or rules of miners or otherwise ; that
no portion of said land is worked for minerals during any
part of the year by any person or persons ; that said land
is essentially non-mineral land, and that he has no inter-
est whatever in said claim, or in said application for patent.
| Clarence Jarbeau.
Verification as in form BB. Benj. C. Catren.
The claimant is not required under the rules as
amended, to file his own affidavit to the same effect.
— Rule 65.
Where a mill site is applied for in connection
with a lode a second affidavit substantially according
to the following form is required. — 13 L. 0. 159.
A A. PROOF OF MILL SITE USED FOB MINING (OB MILL-
ING) PUBPOSES.
STATE OF COLORADO, County of Garfleld: ss.
Before me, the subscriber, a notary public in and for •
said County, personally appeared C. N. Greig (claimant), and
Harry Evans and James W. Ross (witnesses), who being
duly sworn each for himself and not one for the other, saith
that he is a citizen of the United States and resides in said
County. That he is familiar with the Oagool mill site, sur-
vey lot No. 7666 B, for which the said C. N. Greig has ap-
plied for patent in the United States land office at Glen-
wood Springs^ Colorado. ' That the ground embraced in said
survey is used or occupied by said claimant for mining pur-
poses, to wit: as a dump for the Quartermain lode; and
contains an ore house used in the working of said lode; also
a boarding house used by miners engaged in working said
lode; also a tramway and Cornish jig used in operating said
lode (etc., as the case may be).
And the said Harry Evans and James W. Ross, sever-
ally, say that they have no interest whatever in said mill
site or in the application for patent therefor.
G. N. Greig.
Verification as in form BB. Harry Evans.
James W. Ross.
The improvements must be in the nature of
mills, flumes, ditches, or other things incidental to
416 APPLICATION FOR PATENT.
milling or mining. Buildings and roads not used
for such purposes cannot be considered; otherwise if
they are so used. Trails off the claim, used for car-
rying ore, have been accepted as part of the improve-
ments.— 6 L. D. 220. See p. 217.
It is generally advisable to apply for a mill site
in connection with a lode claim; and in applying for
a lode patent a mill site can be included and surface
for building purposes' readily acquired, at a cost of
$50 less than if separate applications are made. See
pages 212, 217.
The lode is always distinguished as survey lot
"A" — the mill site by the same number with the
addition of "B." The mill site may be in another
mining district or in a section different from that
containing the lode.
In such application there must be a plat, and no-
tice K posted on both lode and mill site; if not posted
on the latter, republication will be required. — 25
L. D. 165; 27 Id. 373; Rule 63.
A mill site is not allowed to abut against the
end line of a lode claim (9 L. 0. 188) unless there be
special proof that, notwithstanding the presumption
in such case, the land is not mineral, and the lode
does not continue through it. — 7 L. 0. 179.
The department has ruled that a lode inter-
sected by a mill site or placer may be patented only
to the edge of the intersecting, claim — 13 L. D. 146;
16 Id. 186; 26 Id. 675; 28 Id. 120; and that such a
location is not valid as to ground on the other side
of the mill site.— 26 L. D. 675. But by a later ruling
both parts may be patented if the vein has been dis-
covered on both sides. — 31 L. D. 359.
Two mill sites not containing together more
than five acres may be included in one application.
— 2 L. D. 755.
The land office distinguishes between a mere wa-
ter right and a mill site.— 5 L. D. 190. The use of a
spring is not a mill site occupation. — Id.
APPLICATION FOR PATENT. 417
PLACER PATENT.
Lodes and Placers Distinguished.
Only metalliferous deposits in place are consid-
ered lodes under the mining act. — 9 L. 0. 165. Every-
thing else of a mineral character, i. e. lands con-
taining a mineral substance rendering them of more
value for the extraction thereof than for surface
purposes, is treated as placer ground. The rulings
to this effect are cited on pages 192, 193. In addition
to the cases there given it has been ruled that lime-
stone for lime kiln purposes may be located as placer
ground. — 9 L. 0. 5 ; and it cannot be located as a lode
claim. — 23 L. D. 353; Id. 395. Mica, may be entered
as a mining (presumably a placer) claim. — 2 L. 0.
131. Iron may be lode or placer, according to the
nature of the deposit. A deposit of brick-clay does
not make placer ground.— £ L. D. 761; 31 L. D. 108.
Placer claims require a material subdivision
into—
(1) Claims located on unsurveyed lands.
(2) Claims located by adopting the govern-
mental subdivisions of lands already surveyed.
Placer Patent on Unsurveyed Lands.
In applying for patent on a placer claim located
upon unsurveyed lands the foregoing forms, with
obvious alterations, will suffice.
In addition to such forms used for lode applica-
tions there must be filed in the Land Office with the
first set of papers, proof that the placer contains no
lodes (BB) excepting, of course, such as are espe-
cially applied for in the application itself, or ex-
cluded therefrom as the property of others, and a
certified copy of the Descriptive Report (CC) based
on L. O. Circular, September 23, 1882, 1 L. D. 5////,
Rev. Ed. 685, now embodied in Rule 60, p. 357.
418 APPLICATION FOR PATENT.
BB. PROOF THAT NO KNOWN VEINS EXIST IN PLACER
CLAIM.
STATE OF COLORADO,, County of Gil-pin: ss.
John C. Jenkins and Thomas H. Potter, each of lawful
age, and resident in Central City, in the said County, being
first duly sworn, each for himself, and not one for the other,
saith, that he is a citizen of the United States ; that he is
well acquainted with the Keystone Placer Mining Claim, sit-
uate in Gregory Mining District County of Gilpin, State of
Colorado, claimed by John Wardell, applicant for United
States patent therefor ; that for many years he has resided
near to, and is well acquainted with the character of said
land, having frequently passed over the same ; that his
knowledge of said land is such as to enable him to testify
understandingly in regard thereto, and that there is not,
to his knowledge, within the limits thereof, any known vein
or lode of quartz or other rock in place, bearing gold, silver,
cinnabar, lead, tin or copper, upon said claim or any part
thereof, and further, that he has no interest whatever in
the said placer claim.
JOHN C. JENKINS.
THOMAS II. POTTER.
Subscribed and sworn to before me, this second day of
February, A. D. 1903, and I hereby certify that the foregoing
affidavit was read to the above named John C. Jenkins and
Thomas H. Potter, previous to their names being subscribed
thereto, and that deponents are reputable persons, to whom
full faith and credit should be given. Morris Hazard,
[SEAL.] Notary Public.
This affidavit must be made, by two or more wit-
nesses (Rule 26) and filed in the Land Office, to-
gether with transcript FF, with the first set of pa-
pers.
The descriptive report the deputy makes out
without special instructions on receipt of "B" the
order for survey, and forwards it, with the field
notes of the survey to the Surveyor General.
APPLICATION FOR PATENT. 419
CC. THE DESCRIPTIVE REPORT.
Survey No. *7000.
Under General Land Office Circular "N," of September 23,
1882, upon the placer mining claim known as the
Hyena placer, claimed by Ethan E. Byron — situate in
Spanish Bar mining district, Clear Creek County, Colo-
rado, embracing 160 acres, in section 8, township 3 S.
range 73 W. 6th P. M. Examination made February 5,
1903, by Frank A. Maxwell, U. S. Deputy Mineral Sur-
veyor.
(a) The soil is a black loam, varying from 3 to 6
inches in depth, underlaid with auriferous gravel. The
timber consists of a scattering growth of spruce and yellow
pine trees, and along the banks of the creek there is a dense
growth of small willows.
(&) Beaver Creek, a small stream about 10 feet wide,
runs in a northeasterly direction through the claim.
(c) The workings upon the claim consist of an open
cut 90 feet long, 20 feet wide and 10 feet deep. Course N.
80° E. The center of the westerly end bears N. 5° W. 30
feet from corner No. 4. A ditch .850 feet long, 2 feet wide
and 18 inches deep, course northeasterly, the head of which
bears N. 3° E. 120 feet from corner No. 6. A shaft 3x6
feet, 10 feet deep, which bears from corner No. 4, N. 2°
W. 75 feet, and a drift 3x6 feet, 18 feet long, which bears
from corner No. 4, N. 37° E. 420 feet.
(d) This claim is located about three miles in a south-
easterly direction from the town of Maysville, and one
mile west of Clear Creek Junction.
(e) The Baker and Swansea lodes, located about three
miles in a northerly direction from this claim, are the near-
est well known lode claims. No lode has ever been discov-
ered upon this claim or in the immediate vicinity.
(f) The claim is well adapted for placer mining pur-
poses. Water has been brought from Beaver Creek to work
the lower portion of the claim, and it can be brought from
a point in the same creek about % mile above to work the
whole claim.
(</) The works or expenditures upon this claim, placed
thereon by the claimant and his grantors, consist of an
open cut 90 feet long, 20 feet wide and 10 feet deep. Course
N. 80° E. The center of the westerly end bears N. 5° W.
30 feet from corner No. 4. Value $350. A ditch 850 feet
long, 2 feet wide and 18 inches deep, the head of which
bears N. 3° E. 120 feet from corner No. 6. Course north-
easterly to the open cut mentioned above. Value $200. A
shaft 3x6 feet, 10 feet deep, bears from corner No. 4, N.
2° W. 75 feet. Value $80.
*If on surveyed lands and conforming to legal subdi-
visions no survey number is given and no survey is re-
quired.
420 APPLICATION FOR PATENT.
(7i) There are no salt-licks, salt-springs, mines other
than the claimant's workings, nor mill seats upon this
claim.
I, Frank A. Maxwell, United States Deputy Mineral
Surveyor, do solemnly swear that in pursuance of an order
received from the United States Surveyor General for Colo-
rado, dated February 2, 1903, I have made, under the pro-
visions of General Land Office Circular "N," approved Sep-
tember 23, 1882, a personal and thorough examination upon
the premises, of the placer mining claim of Ethan E. Byron,
known as the Hyena placer, situate in SpanisJi Bar Mining
District, Clear Creek County, Colorado, embracing 160 acres,
in Section 8, Township No. 3, S. Range No. 73 W. 6th P. M.,
and that my report of such examination, hereto attached,
is specific and in detail, and is a full and true statement
of the facts upon all the points specified in said circular.
FRANK A. MAXWELL,
U. S. Deputy Mineral Surveyor.
Subscribed and sworn to by the said Frank A. Max-
well, U. S. Deputy Mineral Surveyor, before me, a notary
public, this 6th day of February, A. D. 1903.
Frank J. Hood,
[SEAL.] Notary Public.
This descriptive report must be corroborated by
the affidavit of one or more disinterested witnesses
as follows — Rule 60:
DD. CORROBORATIVE REPORT.
STATE OF COLORADO, County of Clear Creek: ss.
Daniel Roberts and "Patrick McNiilty being first duly
sworn, each severally deposes and says that he is personally
and well acquainted with the placer mining claim of Ethan
E. Byron, known as the Hyena placer, situate in Spanish Bar
mining district, Clear Creek County, Colorado, embracing 160
acres, in section 8, Township No. 3 S. range No. 73 west,
and also with the character of all the land included in said
claim, and has been so acquainted for two years last past ;
that his knowledge of said claim and land is derived from
personal observation, and is such as to enable him to testify
understandingly with regard thereto ; that he has carefully
read the foregoing report of Frank A. Maxwell, U. S. Deputy
Mineral Surveyor, and that to his own personal knowledge
said report is in all respects true and accurate.
DANIEL ROBERTS.
PATRICK McNuLTY.
Subscribed and sworn to by the above named persons
before me, this 6th day of February, 1903. John Tomay,
[SEAL.] Notary Public.
The descriptive report CC with its Corroborative
Report DD endorsed or attached, the Surveyor Gen-
eral approves in the following form:
APPLICATION FOR PATENT. 421
EE. APPROVAL OF DESCRIPTIVE REPORT.
DEPARTMENT OF THE INTERIOR, )
Office of U. S. Surveyor General,
Denver, Colorado, February 19, 1903. )
I, C. C. Goodale, United States Surveyor General for
Colorado, do hereby certify that the foregoing and annexed
report of the examination of the placer mining claim of
Ethan E. Byron, known as the Hyena placer, made by United
States Deputy Mineral Surveyor Frank A. Maxwell, under
the provisions of General Land Office Circular "N," approved
September 23, 1882 ; and under my instructions dated Feb-
ruary 3, 1903, has been carefully examined and conforms in
all respects to the requirements of said circular ; and said
report is hereby approved.
C. C. GOODALE,
U. S. Surveyor General for Colorado.
After endorsement of such approval, the Sur-
veyor General certifies a
FF. TRANSCRIPT OF DESCRIPTIVE REPORT,
Including its exhibits or endorsements DD and EE
as follows:
GG. CERTIFICATE TO DESCRIPTIVE REPORT.
DEPARTMENT OF THE INTERIOR, )
Office of U. S. Surveyor General,
Denver, Colorado, February 19, 1903. )
I, C. C. Goodale, U. S. Surveyor General for Colorado,
do hereby certify that the annexed is a full, true and correct
copy of the report, made under the provisions of General
Land Office Circular "N," approved September 23, 1882, and
of the affidavits and approval attached to said report on
the placer mining claim of Ethan E. Byron, known -as the
Hyena placer, situate in Spanish Bar mining district, Clear
Creek County, Colorado, Denver land district, as the same
appear on file in this office.
C. C. GOODALE,
U. S. Surveyor General for Colorado.
This transcript so certified, together with the
field notes and plats, is sent to the claimant or to the
deputy who is supposed to deliver all papers to the
attorney for the applicant to enable him to make out
the notices "K" which he causes to be posted and
published, and proceeds in all further respects the
same as on application for lode patent.
422 APPLICATION FOR PATENT.
Application for Patent on Surveyed Lands,
The language of the Congressional Act as to this
class of claims is obscure, but it seems that where
a placer deposit is found on surveyed lands, discov-
ery, location and record must be made exactly as in
the case of discovery on unsurveyed public domain,
except that instead of a description by metes and
bounds, the location certificate should describe it as
the northeast quarter of section 8, toivnship 10, etc.,
using one name for each twenty acres and not claim-
ing more than 160 acres by one record. It is advis-
able to give it a name as in other cases.
Although already surveyed it should be staked,
marking the stakes with the name of the claim and
number of the corner to indicate the appropriation,
replacing the government stakes if not then found,
and it has been decided in two cases in California
(cited pages 197, 198} that this staking is essential.
The Land Office however holds that it need not
be restaked.— 22 L. D. 409. It is true the Govern-
ment stakes are already there, but there is nothing
on them to indicate that they enclose land claimed
by an individual for mining purposes. In this con-
flict of holdings it is therefore safe if not essential
to restake or mark the old stakes upon locating a
government subdivision. Of course any subdivision
less than 160 acres must be staked by the locator, as
there are no official stakes subdividing a quarter sec-
tion.
When the placer application is for an exact
quarter section, or a series of forties or tens recorded
and adopted as the claim, no order for survey, survey
plat or field notes are required, their office having
been fulfilled by the prior government survey already
made and platted with the Surveyor General, and
the application may be made in the Land Office with-
out any proceedings whatever in the Surveyor Gen-
eral's office.
The proof of $500 expenditure in such case should
be made by the affidavit of two or more disinterested
APPLICATION FOR PATENT. 423
witnesses acquainted with the claim. — 25 L. D. 550;
Rule 25.
The descriptive report in such cases is not ob-
ligatory.— 7 L. D. 390. And the Commissioner of the
General Land Office, by letter of October 20, 1900, to
the Surveyor General of Colorado, instructed that
office that, where legal subdivisions are taken, a de-
scriptive report, though approved by the surveyor
general, would not be official unless specially required
by the Department.
The circumstances in which such report would
be required by the department are uncertain, but
when required, would doubtless be ordered through
the office of the surveyor general.
If any ground is excepted so that the claim is
not an exact conformation to the subdivisions an offi-
cial survey is required. — 6 L. D. 580; in which case
the report would doubtless be required ; but no official
survey is required if the excluded ground be patented.
—31 L. D. 64.
Where a Placer Contains Known Lodes Owned
by the applicant, they are applied for as parcels
of the placer application and are especially desig-
nated on the survey by their names but without
separate numbers and platted each with a 'width of
50 feet, or with the full width, if so located, and the
claimant elects to survey them for such full width,
and to pay the lode price for such full width. If
such lodes have never been previously located a for-
mal discovery and record of the same should be made
and abstract filed the same as for the placer.
In requesting order for survey name the lodes,
i. e., insert in form "A" The Special Delivery Placer,
including three 'known lodes, to wit: The Silence,
The Security and The Celerity, etc., and send copies
of location certificate of each lode. — See p. 383.
Where the lode and placer do not touch they
cannot go in the same application. — 5 L. 0. 162.
424 APPLICATION FOR PATENT.
Patenting Known Lode Within Placer Patent.
Although known lodes are distinctly excepted
from the placer patent and the department originally
recognized this exception (7 L. 0. 100} it was later
ruled in the case of the Pike's Peak Lode, JO L. D.
200; 14 Id. 47, that the land office would not issue
patent to the owner of such excepted known lode
unless the placer patent had been either judicially
set aside to the extent of the ground covered by the
surface of the known lode or the placer owner had
quit claimed such surface back to the United States
so as to revest title in the government.
This untenable position of the department was
persisted in until the South Star Lode case, 20 L. D.
204, was decided, where the whole subject was re-
viewed, and the ruling made that patent may issue
to the lode owner "when it had been ascertained by
inquiry instituted by the department" that a lode was
known to exist at the date of the application for the
placer patent, as well as in cases where a judicial
decree to same effect has been rendered. The result
of this ruling is that the lode owner may now apply
for patent as in any ordinary case after first obtain-
ing from the land office an order to ascertain whether
the lode was known to exist before the placer entry.
Butte Co. 21 L. D. 125. No rules have been since
published directing how such inquiry should be made,
but doubtless it would be required to give notice to
the holder of the placer patent, who would be al-
lowed to appear and contest the petition for the or-
der.— 27 L. D. 676. See p. 205.
If the application is allowed, the placer claimant,
if he contests the fact that there was any valid
known lode on the proper date, should file his ad-
verse claim or doubtless he could allow the patent to
proceed and still contest, in ejectment brought by
either side, the validity of the later lode patent, as
in the case of Iron 8. Co. v. Campbell, 16 M. R. 218.
Instance where patentee of placer was not permit-
ted to subsequently patent a lode within the patented
placer.— 27 L. D. 661.
APPLICATION FOR PATENT. 425
As to What Constitutes a Known Lode, the rul-
ings are that there must be mineral worth work-
ing disclosed at the time of the placer entry. —
10 L. D. 156; 13 Id. 86. And the general test on this
class of points seems to be that the land as a lode
claim must have been of greater value than for the
agricultural, mill site, placer or other use, under
which it was applied for and granted. — 12 L. D.
612; 14 Id. 54. See p. 203.
Necessity to Adverse.
Although not bound as in the case of lode against
lode or placer against placer by failure to adverse,
the lode claimant is under the practical necessity to
file and maintain his adverse, in order to place his
rights beyond cavil and secure an express excep-
tion of his lode, or a patent under the same proceed-
ings.— See page 205.
Group Claims.
In the case of the St. Louis Go. v. Kemp, decided
in 1881 (11 M. R..673), a placer had been patented
in excess of 160 acres. The Supreme Court sustained
the patent, and in support of their decision asserted
that a miner's claim might consist of several loca-
tions; that several contiguous locations being pur-
chased by one man became his claim. They say:
"Such is the general understanding of miners and
the meaning they attach to the term." Even what
seem to us the erroneous impressions of our court
of last resort command respect and its decisions
are none the less law, even though they compel us to
accept new meanings to the words of our language.
In fact where claims under district rules were lim-
ited to 100 feet square or other small dimensions, it
has been very common to buy up many such claims
and record them as one location. The interpretation
was, nevertheless, strictly within the province and
range of judicial construction; and as to placers the
Congressional section is not clear as to what consti-
tutes the limit of a claim.
426 APPLICATION FOR PATENT.
Prior to the Kemp case, supra, the Land Office
had properly treated each lode location as a single
mining claim and the practice was to allow out one
to be applied for in one proceeding. After the Kemp
case, overlooking the obvious distinctions between
lode and placer claims, the statute in terms defining
the size of the former, the Department began to allow
applications for groups of lodes, permitting any num-
ber of full lode claims to be patented as one claim,
and requiring only $500 expenditure on the entire
group. The only restriction imposed was that the sev-
eral claims should be contiguous; i. e., should over-
lap or touch, not merely corner with each other.
This manifestly wrong construction was adhered
to until the publication of what is now rule 48 of the
regulations requiring $500 on each location or for
the group- the aggregate of $500 multiplied by the
number of locations. In his official letter of June 21,
1898, 27 L. D. 91, the Hon. Secretary considers the
whole matter and comes to a correct definition of the
term "claim," as being the equivalent of the word
"location."
Although we have always believed that the in-
tent of the Act of Congress was to require every lode
location to make a separate application, it has now
become the settled practice of the Land Office to
allow group applications and when perfected by pat-
ent the patent would doubtless be upheld.
Where several lodes are thus applied for, or
where a placer includes lodes, they receive only one
survey-lot number, but the corners of each are given
a separate consecutive numerical designation, begin-
ning with Cor. No. 1 in each case, which must be
connected with a government corner or U. S. monu-
ment.— Rules 135, 151. The survey should show the
boundaries of each location.— 5 L. D. 199; 6 Id. 808.
A group composed of lodes and placers may be
patented if contiguous.—^ L. D. 7.
APPLICATION FOR PATENT. 427
What Constitutes Improvements.
Underground workings, cross-cuts or tunnels (on
or off the ground, provided they are held by appli-
cant for its benefit, and are bona fide intended to
cut it), buildings, roads, flumes, fixed machinery^
etc., or the 'result of any other ~bona fide expendi-
tures, constitute improvements.
Excepting labor which leaves no trace of itself,
such as hoisting water, whatever counts for annual
labor will count for the $500 improvements. — See
page 93.
Undivided interests in tunnels, etc., held in com-
mon with parties who are not applicants, are allowed
to count as parcel of the necessary $500 improve-
ments.
Old Improvements on the Ground may be pur-
chased from the rightful owners, and so enure
to the benefit of the applicant. The deed con-
veying them should be a quit claim of all vendor's
interest in the claim under the name by which pat-
ent is sought, and of all improvements thereon, etc.,
and where abandoned property is relocated or
jumped, the old improvements do not count without
such purchase.— 30 L. D. 289, 322. The department
in an early circular intimated that they could not
even be purchased (Copp, M. L. 259}, but it later
ruled that the purchaser is entitled to the benefit
of all expenditures made by his grantor. — 21 L. D.
440. Work done on placer prior to location held to
count.— 20 Id. 455.
Among placer improvements cannot be counted
dwelling houses or other structures not associated
with mining.
Completed Pending Application.
It is not essential that the $500 worth of im-
provements should exist on the ground at the time
of the survey. They may be completed at any time
during the period of publication. — 29 L. D. 491. In
such cases the Surveyor General endorses diagram
"F" with a certificate not containing the latter part
428 . APPLICATION FOR PATENT.
of "G." The deputy in his field notes describes such
improvements as may exist, and adds, in substance:
"These improvements are not worth $500." When
completed the deputy sends a special affidavit to the
Surveyor General, who files it and forwards his cer-
tificate to the deputy surveyor, or to the land office
direct, if the deputy so request. An extra deposit
of $5 is required where this affidavit is made subse-
quent to first filing -of field notes.
The department holds (overruling previous de-
cisions), that the statutory requirements (R. 8. Sec.
2325) as to the Surveyor General's certificate of im-
provements is directory only, and that it may be
made after the expiration of the sixty days' publica-
tion.—25 L. D. 550; 26 Id. 122.
Where the Applicant Dies Before Entry.
On filing proof of decease the papers are per-
fected either by an heir or the executor or adminis-
trator, and patent issues to "the heirs of" the appli-
cant.—28 L. D. 14.
When he dies after entry the patent issues in
the name of the deceased.— 2 L. D. 162.
Application by Trustee.
Any party applying to make entry as trustee
must disclose fully the nature of the trust and the
name of the cestui que trust; and such trustee,
as well as the beneficiaries, must furnish satisfac-
tory proof of citizenship; and the names of benefi-
ciaries, as well as that of the trustee, must be in-
serted in the final certificate of entry. — Rule 54. A
claim cannot be patented for the benefit of a foreign
corporation.— 10 L. D. 641; 20 Id. 379.
Patent to Assigns.
On bringing up abstract to date the land office
has issued patents to purchasers from the entry-man.
But as the deed carries the patented title this is not
necessary; nor is it regular. The land office cannot
be presumed to follow title after entry, and might
by such procedure issue it to a party not entitled
in equity to take it.
APPLICATION FOR PATENT. 429
Application Without Eecord Title.
Where the title is old and complicated a party
may, without filing abstract supply the same by
. affidavits under R. 8. § 2332, as explained by Land
Office Rules 7-J-77, that he has worked and possessed
the claim for the limitation period of seven or other
number of years fixed by the local Statute.
Conflicting Applications.
Where an application is pending or entry has
been made, a subsequent application for the same
land should not be accepted— 20 L. D. 81; 29 Id. 29,
114, 226; 31 Id. 59; and no adverse need be filed
against a subsequent application erroneously ac-
cepted.—^ Id. 160; Steel v. Gold Co. 18 Nev. 80. An
adverse suit by entry-man does not waive rights ac-
quired under the entry. — 29 Id. 114. But the govern-
ment will, in some instances, take notice of an ad-
verse by a prior applicant and stay proceedings. — 22
Id. 629; 25 Id. 263.
The Surveyor General gives to any applicant an
approved survey showing the conflicts with prior sur-
veys, but not excluding them as against the survey
asked for, and allowing the claimant to proceed as
he may or can, to apply for patent for the entire
ground within his exterior lines, although wholly or
partly covered by previous patents. It is left to the
land office to bar the application so far as it pretends
to include ground previously patented or applied for.
— See p. 129.
Rulings as to Posting.
The notice "K" must remain posted on the land
office bulletin during the whole period of 60 days —
and the 60 days do not begin to run until it is posted.
—1 D. D. 584; Rev. Ed. 572; 5 L. D. 510.
Posting notice inside an open shaft house or on
the shaft house held to be in a "conspicuous place."
—9 L. 0. 113; 22 L. D. 624; but placing notice in a
box on the ground among large boulders and not
near shaft, held not a conspicuous place. — 21 L. D.
336.
430 APPLICATION FOR PATENT.
Allowing Application to Sleep.
Failure to prosecute application to completion
within a reasonable time after termination of pro-
ceedings constitutes waiver of rights secured under4
the application.— 23 L. D. 62, 301, 308, 359, Jt01 ; Rule
56. A delay beyond the end of the calendar year
after publication held fatal.— 31 L. D. 69.
Miscellaneous Rulings on Patent Application.
Where a lode claim crosses the boundaries of a
land district, apply in district where principal work-
ings lie, but the notice "K" should be posted in the
register's office of each district. — 2 L. 0. 130. When
the land office is closed during a part of the period
of 60 days the time of closing should not be counted
as part of the advertising period. — 1 L. D. 584; Rev.
Ed. 572. A claim already patented cannot be made
the basis of a second application for more surface. —
9 L. 0. 113.
Where application is begun in the wrong land
district proceedings must be de novo, after error dis-
covered.—17 L. D. 282.
Surveyors General and Deputy Mineral Sur-
veyors are disqualified as applicants for mineral
land.— 29 L. D. 333.
Limitation of Entries.
The A. C. of 1889 (1 Sup. 792) limiting the total
acreage of the aggregate of entries under all the land
laws to 320 acres to one individual, is construed by
Act of 1891 (1 Sup. 946) to not apply to mineral en-
tries; but this section has no bearing on the question
of patenting sundry claims on one application re-
ferred to on p. 425.
ADVERSE CLAIM. 431
ADVERSE CLAIM.
Sixty Days to File.
R. S. Sec. 2325. * * * — If no adverse claim shall
have been filed with the register and the receiver of the
proper land-office at the expiration of the sixty days of
publication, it shall be assumed that the applicant is enti-
tled to a patent, upon the payment to the proper officer of
five dollars per acre, and that no adverse claim exists ; and
thereafter no objection from third parties to the issuance of
a patent shall be heard, except it be shown that the appli-
cant has failed to comply with the terms of this chapter.
Extent — Boundaries — Stays Proceedings.
R. S. Sec. 2326. — Where an adverse claim is filed during
the period of publication, it shall be upon oath of the per-
son or persons making the same, and shall show the nature,
boundaries, and extent of such adverse claim, and all pro-
ceedings, except the publication of notice and making and
filing of the affidavit thereof, shall be stayed until the con-
troversy shall have been settled or decided by a court of
competent jurisdiction, or the adverse claim waived.
Thirty Days to Bring Suit.
It shall be the duty of the adverse claimant, within
thirty days after filing his claim, to commence proceedings
in a court of competent jurisdiction, to determine the ques-
tion of the right of possession, and prosecute the same with
reasonable diligence to final judgment ; and a failure so to
do shall be a waiver of his adverse claim. * * *
An adverse claim must be made during the
period of sixty days publication, which is construed
to mean on or before the sixtieth day after the date
of first newspaper publication, such date being ex-
cluded in the calculation.— 13 L. D. 286. See p. 437.
The proceedings are as follows: the adverse
claimant subscribes and verifies his
432 ADVERSPJ CLAIM.
HH. ADVERSE CLAIM.
United States Land Office at Pueblo, Colorado :
In the matter of the application of E. H. Cook for a
United States patent to the Bear Lode mining claim, situate
in Cripple Creek mining district, County of Teller, State of
Colorado.
To the Register and Receiver of the United States Land
Office, and to the above named claimant :
WHEREAS, E. H. Cook did, on the 16th day of Decem-
ber, A. D. 1902, file in the district land office of the United
States, at Pueblo, Colorado, a certain plat of a survey of a
certain lode, together with his application for a United
States patent for said lode, naming and calling the said lode
in said plat and application the Bear Lode, situate in Cripple
Creek mining district, County of Teller, State of Colorado ;
said survey and plat being designated as mineral survey No.
11,310, and consisting of 1500 linear feet, together with sur-
face ground 300 feet in width ; and the said E. H. Cook did,
at the same time and place, give notice that he would ap-
ply for a United States patent for the above described lode
and premises in substance as follows :
[Here attach copy of newspaper publication.]
AND WHEREAS, The first publication of said notice of
said application appeared in the Cripple Creek Star, a
weekly newspaper published at Cripple Creek, in said County
and State on the 18th day of December, A. D. 1902.
Now THEREFORE, I, Edward F. Bishop, a citizen of the
United States over the age of twenty-one years, residing in
and my postoffice address being Denver, in the County of
Denver, in said State, do, on this third day of February,
A. D. 1903, enter this, my protest, and adverse claim against
the issuing of a patent to the said E. H. Cook, for his pre-
tended claim upon the so-called Bear Lode, as set forth in
his said plat and field notes as aforesaid, for the following
reasons, to wit :
1. The surface ground and veins or lodes contained
therein as set forth and described in the plat and field notes
of the said E. H. Cook, or a great portion thereof, are not the
property of the said applicant, neither is he entitled to hold
the same under or by virtue of the local laws, rules and cus-
toms of miners in said mining district, the laws of the
State of Colorado, or the Statutes of the United States re-
lating to mining claims.
2. Because a great portion of the premises described
in said plat and notice of said applicant, and claimed by
him as the so-called Bear Lode, is claimed adversely, and is
owned by this protestant, and is in fact a portion of the
premises claimed and owned by this protestant as the Ele-
phant Lode, as will appear by reference to an abstract of
title herewith filed, made a part of this protest and marked
Exhibit A.
3. Because this protestant (and his grantors) have
held, occupied and possessed a great portion of the premises
set forth and described by the said E. H. Cook in his plat
ADVERSE CLAIM. 433
and notice of the so-called Bear Lode, long prior to the pre-
tended discovery and location of the so-called Bear Lode ;
such occupation and possession of this protestant (and his
grantors) having been under and by virtue of a full com-
pliance with the local laws, rules and customs of said min-
ing district, and the laws of said State, and of the United
States, pertaining to mineral lands.
4. Because this protestant (and his grantors) have
held, occupied and possessed all that portion of the so-
called Bear Lode, as represented on the plat of a survey
made by Thomas L. Darby, deputy United States mineral
surveyor, and colored red, said plat of said survey being
herewith filed, marked Exhibit B, and made a part of this
protest, and hnve held, occupied and possessed the same
long prior to the pretended discovery and location of the
so-called Bear Lode. And this protestant is the original
discoverer and locator of said Elephant Lode (or is a bona
fide purchaser for a valuable consideration, from or through
the original discoverer and locator of said Elephant Lode,
by conveyances), as shown on said abstract. See Rule 81.
5. Because a valid discovery, location, and record of
said Elephant Lode was made by this protestant (or his
grantors), in strict compliance with said local laws, rules
and customs, and the laws of the State of Colorado and
of the United States, and while the same was vacant min-
eral land of the United States open to occupation long
prior to any pretended discovery or location thereof by said
E. H. Cook (or his grantors) and said Elephant Lode hath
been occupied and possessed as aforesaid, ever since its dis-
covery as aforesaid, by this protestant (and his grantors),
under and by virtue of such discovery, location and record.
6. Because the discovery shaft of the so-called Bear
Lode was not of the legal depth of ten feet from the lowest
part of the rim at the surface, as required by law at the
date of the pretended record of the same, and has never
been since sunk to that depth. 7, etc., 8, etc.
THEREFORE, This protestant enters this his protest and
adverse claim against the issuance of a patent to the said
E. H. Cook, for his claim upon the so-called Bear Lode.
ED. P. BISHOP.
STATE OF COLORADO, County of Teller: ss.
On this 3d day of February, A. D. 1903, before me, the
subscriber, a Notary Public in and for said county, person-
ally appeared the above named Edivard F. Bishop, who being
first duly sworn, saith that he is the adverse claimant
named in the foregoing protest and adverse claim above
subscribed by him. That he has read the same and knows
the contents thereof ; that the same is true in substance
and in fact ; and that the said adverse claim is made in
good faith and to protect his better and prior title.
• ED. P. BISHOP.
Sworn and subscribed before me, this 3d day of Febru-
ary, A. D. 1903. E. H. Gruber,
[SEAL.] Notary Public.
434 ADVERSE CLAIM.
To the above reasons others may be added where
specific facts are known going to the invalidity of
the claim sought to be patented, but in every case
allege that the claims conflict and that the adverse
claimant is owner of the conflicting area and veins,
as in paragraph No. 2 of the above form. The first
five paragraphs constitute a good statement of an
adverse right, according to the various land office
rulings, and others are added only as precautionary.
Exhibit "A" Is an Abstract of Title certified as
in form "N" and should contain a copy of the
Location Certificate. But failure to file the ab:
stract within the period of publication (15 L. D.
45) as well as failure to furnish the certified copy,
have been held not fatal.— 14 L. 0. 237.
Exhibit "B" Is a Plat made by a U. S. deputy min-
eral surveyor, showing the interference of the two
claims, certified as follows:
I hereby certify that the above diagram correctly
shows the Elephant Lode in its entirety, its relative situa-
tion or position to the Bear Lode and the extent of the con-
flict claimed to exist between said Bear Lode and said Ele-
phant Lode as actually surveyed by me.
Thomas L. Darby,
U. S. Deputy Mineral Surveyor.
When it is impossible to procure an actual sur-
vey, as of a snow-bound claim, an adverse claim
showing the nature, extent and boundaries of the
conflict, stating the reason why the claim could not
be reached for survey, will* be sufficient. — 1 L. D.
592; Rev. Ed. 582; Hoffman v. Beecher, 31 Pac. 92.
The plat need not be made by a U. S. deputy sur-
veyor.—27 L. D. 358; 29 Id. 460; Anchor v. Howe, 50
Fed. 366.
No plat required where claimant and adverse
claimant hold by legal subdivision. — Rule 82.
Improvements.
The amount of improvements on the adversing
claim is immaterial, and though formerly required,
need not, under present rules, be shown, or their
value stated. — Rule 82.
ADVERSE CLAIM. 435
Separate Adverse Claims.
Where there are several Applications to be ad-
versed by a single lode, a separate Adverse Claim
with its Plat and Abstract must be filed in each
case. Where the adverse claimant has several lodes
with which he intends to adverse a single applica-
tion, the practice is to combine them in a single Ad-
verse Claim.
Where and by Whom Verified.
An adverse claim is usually verified by the ad-
verse claimant or one of the adverse claimants and
within the land district.
But by Act of April 26, 1882 (post p. 468), it may
be verified by an agent or attorney in fact cognizant
of the facts stated, who must swear to his agency
and furnish proof thereof. — Rules 78, 7,9. Such agent
must make his verification in the land district. —
Rule 80. A corporation verifies either by its execu-
tive officer (president) or its agent thereto author-
ized. And if the claimant is a non-resident or absent
from the district and verifies it personally he may
make such verification wherever he may be, before
the clerk of any court of record or a notary public,
anywhere within the United States.
In cases of emergency it is a legitimate expe-
dient to have the intending adverse claimant convey
to a third party within the district, who then makes
and verifies the adverse claim precisely as if he
were the real, as he becomes in fact the legal, owner
of the adversing claim. But since the Act allowing
verification by the adverse claimant beyond the dis-
trict, or the filing by an agent, this course need sel-
dom be resorted to.
Form of Adverse and Verification by Agent.
Proceed as in form "HH" to the last paragraph
and insert:
Wherefore this protestant, by Charles T. Limlerg, his
duly authorized agent and attorney in fact who is personally
cognizant of the facts herein stated, enters this his pro-
436 ADVERSE CLAIM.
test and adverse claim against the issuance of a patent to
the said E. H. Cook for his claim upon the so-called Bear
Lode. EDWARD F. BISHOP,
By Charles T. Limberg,
His agent and attorney in fact.
STATE OF COLORADO, County of Teller: ss.
On this third day of February, A. D. 1903, before me,
the subscriber, a Notary Public in and for said county, per-
sonally appeared the above named Charles T. Limberg, who
being first duly sworn, saith that he is the duly authorized
agent and attorney in fact of the above named Edward F.
Bishop, adverse claimant named in the foregoing protest
and adverse claim above subscribed by affiant as will further
appear by the copy of his power of attorney hereto attached
marked Exhibit C ; that affiant has read the foregoing pro
test and adverse claim, and is cognizant of the facts therein
stated, and that the same is true in substance and in fact,
and is made in good faith to protect the prior and better
title of his said principal.
CHARLES T. LIMBERG.
Sworn and subscribed before me this third day of Feb-
ruary, A. D. 1903. E. H. Gruber,
[SEAL.] Notary Public.
By Co-Owner.
A single co-owner may make and verify the ad-
verse claim "on behalf of himself and his co-owners,"
which phrase should, in the form "HH," follow the
name of the protestant wherever it occurs or where
the context requires it, when an adverse is so made.
And it is held that one co-owner may adverse
although another co-owner refuse to join him.
And one co-owner cannot withdraw his adverse
so as to prejudice another who has joined with him.
Against Co-Tenant.
Where one or more co-tenants apply for patent,
omitting the name of one or more of their associates,
the title received enures to the benefit of all the co-
owners. — Turner v. Sawyer, 150 U. 'S. 578; Brundy
v. Mayfield, 38 Pac. 1067. Nevertheless, the legal title
passes by the patent, to the patentees and to them
only; and while the ousted co-tenant will, in equity,
upon proper proceedings be declared a beneficiary
under the patent, yet if he is aware of the proceed-
ing in time and has opportunity, undoubtedly the bet-
ADVERSE CLAIM. 437
ter course is to adverse. By Rule 53 the Land Office
regards a co-tenant in such case as a protestant rather
than an adverse claimant and does not require suit
in support of the protest; but if he elects to bring
suit the application will be stayed to await its de-
termination.— 25 L. D. 495. The distinction here
attempted is refined. There is nothing in the Tur-
ner case construed in 25 L. D. 495, to intimate that
a co-tenant may not, if he wish, file his adverse
claim.
Time to File.
The period is strictly limited to sixty days exclud-
ing the first day. — 13 L. D. 718; 28 Id. 224.
To instance: where first publication was on Oc-
tober 19 they excluded the first day and count —
October 12 days;
November 30 days;
December 18 days;
total 60 days, and made December 18th, the last day
on which an adverse could be filed. — 13 L. D. 286; 16
L. D. 101.
Time Can not be Extended.
No adverse claim can be received after the ex-
piration of the statutory period, and the Department
is without authority to enlarge the time for filing. —
29 L. D. 4W.
So also the 30 days time allowed for commencing
suit cannot be extended; the law limiting the period
is mandatory; if the papers intended to commence
suit are delayed in the mail, or action is delayed
through the agency of an attorney corrupted, thev
Land Office can afford no relief. — 2 L. D. 707; Sicfcel,
190, 320. But the Department will not review a ju-
dicial determination that a suit was initiated within
the statutory period. — 23 L. D. 20.
Republication.
When for any cause a republication is required,
the adverse claim must be re-filed during the second
period of advertising; but no additional filing fee is
charged. — Sickel, 313.
438 ADVERSE CLAIM.
Where there has been a material misdescription
in the published notice a republication (and in this
case a resurvey) will be ordered, although applicant
has already made final entry. — 17 L. D. 565.
Sunday — Holidays.
It has been ruled that an adverse may be filed
on Sunday, when the last day falls on Sunday; and
out of office hours on any day; but that the receiv-
ing and filing out of office hours, or on Sunday, is
not compulsory upon the officers. — 6 L. 0. 73; 23
L. D. 546. And that if the 60th day fall on Sunday
the adverse may be filed on the succeeding Monday. —
8 L. D. 430. The same ruling has been followed
where the last day falls on a legal holiday. — IS L. D.
718.
Amendment.
An adverse claim cannot be withdrawn for
amendment; but if a material defect should be dis-
covered, there would be nothing to prevent the filing
of a second adverse, complete in itself, provided the
60 days had not expired.— Copp, 121, 155, 227; Sickel,
208.
An Appeal Lies from the rejection of an adverse
claim. — 13 L. D. 718. In an instance where an adverse
had been filed which was dismissed as defective but
the adverse claimant brought his euit and filed his
certificate, the land office declined to allow further
action on the application until the decision of the
suit— 2 L. D. 706.
If the adverse claim is dismissed by the local
Land office the adverse claimant must nevertheless
bring suit within the 30 days- or his rights will be
gone although he sustain his contention on appeal
to Washington from the dismissal of his adverse.
This manifestly wrong and unjust ruling was the
final result of all possible holdings on the point, in
the various branches of the Land Department, in
the case of a lode called the "No Mistake."— 22 L. D.
274.
ADVERSE CLAIM. 439
What Claims Should Adverse.
A mill site must adverse a lode claim to protect
its rights. — 1 L. D. 566; Rev. Ed. .555. But see con-
tra, 25 Id. 7. Of course lode must adverse lode, and
mill site must adverse mill site, and placer must ad-
verse placer, or all pretense of prior title will cease to
be of avail. — See page 128. A party for whose use the
patent will enure need not adverse. — Hunt v.
Patchin, So Fed. 816. And an agreement to patent
for another, in trust, is valid. — Bates v. Wilson, 14
Colo. 140.
Such easements (flumes, ditch rights, etc.) as
are protected by statute need not adverse. — Rockivell
v. Graham, 15 M. R. 299.
Unpatented Town Lots have been allowed to ad-
verse a mining application and the occupant of the
lot has the better title unless the ground at the time
of the location was known to have mineral value. —
Bonner v. Meikle, 82 Fed. 697; Young v. Goldsteen, 97
Fed. 306. But the department has lately held that
such adverse would be rejected and that the question
of known mineral value should be decided upon hear-
ing in the land office —23 L. D. 522.
Miscellaneous Rulings.
An adverse claim substantially defective may be
rejected.— 3 L. 0. 18; 9 L. 0. 5. But if it show the
nature, boundaries and extent of the claim, the Land
Office will accept it even though it do not meet all the
requirements of the regulations. — 27 L. D. 358.
The land office is not bound to receive an ad-
verse claim when the filing fee is not paid or tendered.
—29 L. D. 413.
Where there is no surface conflict an adverse
filed to anticipate conflict expected on the dip, will
not be received.— 6 L. D. 318; 29 Id. 662; Cham-
pion Co. v. Wyoming Co. 16 M. R. 145.
An adverse based on a claim located after the
publication began not containing allegations deny-
ing the validity of the prior claim adversed, will be
rejected.— 7 L. 0. 50; Contra, 2 L. D. 699.
440 ADVERSE CLAIM.
Suit in Support of Adverse.
After the adverse claim is filed, the adverse
claimant must bring suit for the premises in dis-
pute, within 30 days, under the terms of R. 8. §
2326. See p. Jt31.
If his suit is not brought within the thirty days
the adverse claimant has no standing in the Land
Office except as a mere protestant; and the applicant
may proceed to enter, notwithstanding the adverse.
—14 L. D. 180.
It has been held ^that failure to bring suit
within the 30-day period must be specially pleaded
and cannot be availed of for the first time on ap-
peal.— Providence Co. v. Marks, 60 Pac. 938.
The Proper Court is usually the District Court of
the County where the mine is situate, except in
those cases where the facts of value and citizenship
are such that the U. S. Circuit Court may have juris-
diction.
It had been ruled in several districts that an
adverse suit presented Federal questions so as to
give jurisdiction to the U. S. Courts— Burke v. Bun-
ker Hill Co. 46 Fed. 644. But HALLETT, J. always
refused to entertain jurisdiction on this ground, and
his construction has been sustained, and the ques-
tion set at rest by the Supreme Court, in Blackburn
v. Portland Co. 175 U. 8. 571; followed by Shoshone
Co. v. Rutter, 177 U. S. 505; Mt. View Co. v. McFad-
den, 180 U. 8. 533.
When the Federal Court has jurisdiction on ac-
count of diverse citizenship, or when the pleader is
able to state a Federal question in the complaint,
which is a difficult matter, the pleadings should also
show the jurisdictional value $2,000, and whether
the premises are lode or placer. — Yelloio Aster Co.
v. Winctiell, 95 Fed.- 213.
Even when the courts of the United States have
undoubted jurisdiction the State Court is not ousted,
but the suit may be commenced in the State Court,
subject to defendant's right of removal.
ADVERSE CLAIM. 441
Filing complaint, but delaying issue of summons,
is such a commencement of "proceedings," as to sus-
pend jurisdiction of the Department.— 22 L. D. 16.
Proof of Commencing Suit.
After the complaint is filed a certificate should
be made and signed by the clerk of the court and
filed in the local Land Office in substance as follows:
JJ. CERTIFICATE OF SUIT.
STATE OF COLORADO, County of Teller: ss.
I, Alex. W. Grant, Clerk of the District Court of said
County, do hereby certify that Ed. F. Bishop did on the 10th
day of February, A. D. 1003, commence an action in said
Court against E. H. Cook, to sustain an adverse claim
against the Bear Lode, survey lot No. 11,310, situate in
Cripple Creek Mining District, Teller County, State of Colo-
rado, and to recover possession of all that parcel of the
Elephant Lode, embraced within the lines of said survey lot,
and that said action is now pending and undetermined in
said Court.
Attest my hand and the seal of said Court at Cripple
Creek, this 10th day of February, A. D. 1903.
[SEAL OF COURT.] ALEX. W. GRANT,
Clerk.
But the failure to file this certificate is not fatal
under Rule 88, which requires the applicant to file
certificate showing affirmatively that no suit has
been brought.
When a Suit Is Already Pending between the same
parties for the recovery of the ground in conflict at
the time of the filing of the adverse, it has been ruled
that such suit may stand as the suit to support the
adverse and no new suit need be brought. — 8 L. D.
437; 29 Id. 194. In such case the plaintiff cannot dis-
miss so as to leave the adverse without a suit support-
ing it.— Axiom Co. v. Little, 61 N. W. 441-
The Suit in Support of an Adverse is ordinarily
at law by ejectment and such a suit is certainly
contemplated in the statute above printed by the
use of the clause "the jury shall so find." Such
is undoubtedly the form of action where the plain-
tiff, as is usually the case, is out of possession.
But where the plaintiff is already in possession he
442 ADVERSE CLAIM.
may proceed in equity by bill to quiet title. This
view making the form of action depend upon whether
plaintiff is in or out of possession is that which is
clearly expressed by the final authority in such cases.
—Perego v. Dodge, 163 U. 8. 165.
There had been decisions holding in general
terms that ejectment was the proper remedy:
Becker v. Pugn, 15 M. R. 304; Manning v. Strehlow,
11 Colo. .451; Burke v. McDonald, J3 Pac. 351 ; and
others asserting it to be an equitable action: Doe v.
Waterloo Co. 43 Fed. 219; Shoshone Co. v. Rutter,
87 Fed. 801; Providence Co. v. Burke, 57 Pac. 641;
McFadden v. Mt. View Co. 97 Fed. 670; but the
Perego case states the obvious test of possession as
determining the form of action.
The cases which hold that it is an equitable
action lose sight of the fact that the adverse and the
suit are independent proceedings. The adverse be-
ing filed in the Land Office, the Government, the
Trustee of the Title — directs the contestants to ad-
judicate their controversy in a "court of competent
jurisdiction." It then allows the winning party to
report his obedience to the direction, his success in
the suit — and the patent application resumes its
progress. There is no connection between the two
procedures such as to bring the cause within any
one of the limited schedule of the subjects of equit-
able jurisdiction. But if at the proper time for
bringing suit the plaintiff be in possession he has
the right to bring suit in equity to quiet title: the
same suit which he could maintain if there were no
controversy pending in the Land Office.
If neither party is in actual exclusive possession
or if the facts render the point doubtful the claim-
ant can treat the application as an ouster and pro-
ceed at law.— Becker v. Pugh, 15 M. R. 304. See p. 314.
In agreement with the Perego case and with
these views are the cases of Durgan v. Redding, 103
Fed. 914; Johnson v. Munday, 104 Fed. 594; Young
v. Ooldsteen, 97 Fed. 303; Book v. Justice Co. 58 Fed.
ADVERSE CLAIM. 443
An ordinary complaint in ejectment will sup-
port an adverse claim; and it may be amended after
the expiration of the thirty days. — Deeney v. Min-
eral Co. 67 Pac. 724.
Complaint.
As the complaint is filed in support of the ad-
verse it should conform strictly to it. It should not
declare generally for either lode, but for the inter-
ference.— Cronin v. Bear Creek do. 32 Pac. 204. If
it declare for the entire lode it would necessitate a
disclaimer as to parcel of the premises.
KK. FORM OF COMPLAINT.
STATE OF COLORADO, County of Teller: ss.
In the District Court of said County.
Edward F. Bishop, Plaintiff,
E. H. Cook, Defendant.
The plaintiff complains and alleges :
1. That on to wit : the -first day of January, A. D.
1897, and ever since hitherto he was, and is, the owner and
in actual occupation of the Elephant Lode Mining Claim,
1500 feet in length by 300 feet in width, situate in Cripple
Creek Mining District, County and State aforesaid.
2. That the plaintiff is, and at all times mentioned
in this complaint hath been, a citizen of the United States,
(or)
2. That at and before the date last aforesaid the
plaintiff had declared his intention to become a citizen of the
United States before a court of record, to wit : The Court
of Common Pleas of the County of Allegheny, Commonwealth
of Pennsylvania.
3. That he has and claims the legal right to occupy
and possess said premises and is entitled to the possession
thereof by virtue of full compliance with the local laws and
rules of miners in said mining district, the laws of the
United States, and of said State of Colorado, by pre-emption
(and purchase) and by actual prior possession, as a Lode
Mining Claim, located on the public domain of the United
States. — See Code, Sec. 267.
4. That on or about the first day of November, A. D.
1902, the defendant wrongfully entered upon parcel of said
claim, to wit : All that part of said claim which is inter-
sected by the exterior lines of Survey Lot No. 11310, known
as the Bear Lode Mining Claim, as shown by plat marked
Exhibit "B," filed on the third day of February, A. D. 1903,
in the land office of the United States, at Pueblo, in the said
State, with the adverse claim of the plaintiff against the
entry of said survey lot for patent, such ground so inter-
444 ADVERSE CLAIM.
sected being described as follows: (here interference should
be described by metes and bounds) and that defendent hath
ever since hitherto wrongfully withheld the possession of
said parcel of said Elephant Lode Mining Claim from the
plaintiff to his damage in the sum of one hundred dollars.
5. That said adverse claim was filed in said Land
Office within the period of sixty days of publication of the
notice of application for patent on said Bear lode and this
suit is brought before the expiration of the period of thirty
days after the filing of said adverse claim.
6. That this suit is brought in support of said ad-
verse claim, and that plaintiff necessarily disbursed, ex-
pended and paid out the sum of twenty-five dollars for plats,
abstracts and copies of papers filed in said land office with
his said adverse claim, and also a reasonable counsel fee,
to wit : fifty dollars, for the expense of preparing his said
adverse claim.
Wherefore plaintiff prays judgment against the defend-
ant :
1. For the recovery of possession of said parcel of
said Elephant Lode Mining Claim.
2. For the sum of one hundred dollars damages.
3. For the sum of seventy-five dollars expended in
support of said adverse claim.
4. For costs of suit. D p Howardt
Attorney for Plaintiff.
Add verification if desired; but in actions of
ejectment, trespass, etc., the practice of verifying
the pleadings ought to be discouraged.
Averment of Citizenship.
It has become the practice to aver the citizen-
ship of the parties in their respective pleadings.
The forms above given contain such allegation, and
if issue is taken on it the fact must be proved. —
Strickley v. Hill, 62 Pac. 894. See Citations p. 283.
We have always expressed the opinion that in
the judicial proceeding there ought to exist in this
as in other cases the presumption of citizenship,
while in the land office proper it is a matter of proof,
required both from applicant and adverse claimant,
to be shown by party's affidavit.
As to complaints omitting the allegations of
paragraph 5 in the above form see p. 315.
Costs.
Paragraph 6 of the above form is based on
M. A. S. § 700. The costs in such section, strictly
ADVERSE CLAIM. 445
construed, could not be made to include more than
the expense of abstract, plat and attorney's fee. It
it customary between counsel to concede without
proofs that $75 has been paid under this allegation.
Complaint Detailing History of Location.
There is another style of complaint which sets
forth chronologically the fact of discovery, of sink-
ing the shaft, its depth, and what it disclosed; the
placing, of the location stake, the marking of the
claim, and the record; following the language of the
statute concerning location, etc. But many claims
are sufficiently valid to maintain ejectment without
a strict location, or the defendant may be in posi-
tion where he is estopped from asserting weak points
in the plaintiff's case. In any event such recitals
lead to cumbersome pleadings and to immaterial is-
sues, and are not the ultimate facts required to be
stated in code pleading.
General allegations of title are sufficient. —
Rough v. Simmons, 15 M. R. 298. But the complaint
sustained in that case is the extreme of loose plead-
ing.
LL. ANSWER.
STATE OF COLORADO, County of Teller: ss.
In the District Court of said County.
Edward F. Bishop, Plaintiff,
v.
E. H. CooTc, Defendant.
Defendant answering the complaint says :
For a first defense :
1. He denies that on the date charged in complaint
or at any time the plaintiff was or is the owner or was
in the occupation, actual or otherwise, of the Elephant Lode
Mining Claim described in said complaint.
2. He admits (or denies) that the plaintiff is a citi-
zen of the United States.
3. Defendant denies that plaintiff has or claims the
legal right to occupy and possess said premises or is enti-
tled to the possession thereof, and denies that he hath com-
plied with the local laws or rules of miners in said Cripple
Creek Mining District, the laws of the United States, or
of said State of Colorado, in the pre-emption, discovery, or
location of said socalled Elephant Lode Mining Claim.
4. Defendant denies that at the time charged in par-
agraph four of complaint, or at any time, the defendant
446 ADVERSE CLAIM.
wrongfully entered upon the parcel of said claim described
in said paragraph or any part thereof, or that he hath ever
since hitherto, or at any time, wrongfully withheld posses-
sion of said premises from the plaintiff, and denies that the
plaintiff is damaged in the sum of $100 or in any sum, or
at all.
5. Defendant admits the allegations of paragraphs
five and six of complaint.
For a second defense, defendant says :
1. That he is a citizen of the United States, and that
ever since, to wit : the first day of January, 1897, he was
and is the owner and in actual occupation of the Bear Lode
Mining Claim, 1500 feet in length by 300 feet in width, sit-
uate in said Cripple Creek Mining District, County and
State aforesaid.
2. That he has and claims the legal right to occupy
and possess said Bear Lode Mining Claim, and is entitled
to the possession thereof by virtue of full compliance with
the local laws and rules of miners in said mining district,
the laws of the United States and of said State of Colorado,
by pre-emption (and purchase) and by actual prior posses-
sion as a lode mining claim located on the public domain
of the United States.
3. And that the premises sued for in said complaint
are parcel of said Bear Lode Mining Claim, the property of
this defendant. Emilio D. DeSoto,
Attorney for Defendant.
A Replication Must Be Filed to such second de-
fense or the defendant will be entitled to judgment. —
Newman v. Newton, 14 Fed. 634. But if parties go
to trial on the merits, defendant will be assumed to
have waived this right. — Quimby v. Boyd, 8 Colo. 19rf.
And in Wyoming, in 7&a v. Central Ass'n, 40
Pac. 527; 42 Pac. 20, the court took the very tenable
position that the second defense was only in effect a
traverse of the complaint and did not require any
replication.
The Verdict should show that the winning party
is entitled to possession by virtue of making a valid
location of the claim. — Burke v. McDonald, 33 Pac.
49; 17 M. R. — . It should of course comply with all
mandatory requirements of the code of the State
where tried. But as it has been very rightly held that
neither party is required in the adverse suit to show
that he has done everything entitling to patent (Doe
v. Waterloo Co. 70 Fed. 456), and the National Supreme
Court upholds a general verdict for either party
ADVERSE CLAIM. 447
•
(Bennett v. Harkrader, 158 U. 8. 441 ), it would seem
that such strictness as was insisted on in McGinnis
v. Egbert, 15 M. R. 329, and Manning v. Strehlow, 11
Colo. 451, ought not now to be required.
MM. VERDICT FOR PLAINTIFF.
We, the jury, find the issues in favor of the plaintiff,
and that he is the owner by discovery (or purchase) and
location and has established his right to the possession and
occupancy of the premises described and claimed in the
complaint, to wit: All that part of the Elephant Lode Mining
Claim covered by the survey of the Bear Lode Mining Claim ,
Survey Lot. No. 11310; and that he, the plaintiff, is such
owner and entitled to recover said premises of and from
the defendant by virtue of full compliance with the stat-
utes of the United States and of the State of Colorado
in the discovery and location of said Elephant Lode Mining
Claim. And that he expended and should recover from the
defendant the sum of seventy-five dollars expenses and coun-
sel fee as charged for in complaint.
NN. VERDICT FOR DEFENDANT.
We, the jury, find the issues in favor of the defend-
ant, and that he is the owner by discovery (or purchase)
and location and has established his right to the posses-
sion and occupancy of the premises described and claimed
in the answer, to wit : The Bear Lode Mining Claim, Survey
Lot No. 11,310, and that he, the defendant, is such owner
by virtue of full compliance with the statutes of the United
States and of the State of Colorado in the discovery and
location of said Bear Lode Mining Claim.
The above forms comply with Section 269 of the
Code and with other points peculiar to an adverse
suit, as suggested in said decisions of the Supreme
Court.
Rulings in Ejectment Supporting Adverse.
An adverse claim may show that the location ad-
versed is invalid by reason of the existence of a
third claim in which neither party has any interest.
— Harrington v. Chambers, 1 Pac. 362. Affirmed, 111
V. S. 350, but with only a general reference to this
point in the last paragraph. To the contrary seems
Strepey v. Stark, 7 Colo. 614; 17 M. R. 28. See
EJECTMENT, p. 314.
Declarations of a locator may be given in evi-
dence to dispute his title. — Harrington v. Chambers,
448 ADVETISE CLAIM.
•
supra; Muldoon v. Brown, 59 Pac. 720. But not ad-
missions made after he has parted with his title. —
McGinnis v. Egbert, 15 M. R. 329.
Diligent Prosecution,
The Land Office cannot adjudicate upon the
question whether the suit is being prosecuted with
due diligence. — Richmond Co. v. Rose, 114 U. 8. 576;
8. C. 27 Pac. 1105.
Dismissal and Reinstatement.
Jurisdiction once attached remains and where
default was had, but the cause reinstated, the ad-
verse holds, notwithstanding certificate of no suit
pending had been filed during the interval.—/ L. D.
542; Rev. Ed. 539. Nor will a Receiver's receipt ob-
tained in such interval be allowed in evidence. — Mc-
Evoy v. Hyman, 15 M. R. 300; Deeney v. Mineral
Co. 67 Pac. 724.
Waiver — Withdrawal or Failure to Support.
An adverse claim may be withdrawn either be-
fore or after bringing the suit thereby waiving all
rights claimed.— 4 L. D. 117; 29 L. D. 89. Or by vol-
untarily dismissing the suit. — 4 L. D. 273. And
when suit is dismissed certificate to that effect must
be filed. Upon failure to issue summons within the
period required by the code the complaint may be
dismissed. — Steves v. Carson, 21 Colo. 280; and a
second suit cannot afterwards be brought. — Id. 42
Fed. 821. See Rules 86, 87.
Two Suits.
Where there was one adverse claim filed by two
co-owners, each of whom brought a separate suit in
different courts, one of which suits was dismissed,
although the department held that the bringing of
the two suits was useless and irregular they refused
to allow entry until both were disposed of. — 22 L. D.
343.
The Court Trying the Adverse Suit may give full
relief and if necessary restore the successful party to
possession. — Silver City Co. v. Lowry, 57 Pac. 11.
ADVERSE CLAIM. 449
Defects in the Adverse Claim are not material
to the issue at law between the parties, and are for
departmental consideration only. — Rose v. Richmond
Go. 17 Nev. 25; Quigley v. Gillett, 85 Pac. 1040.
Title in Neither Party.
That if, in any action brought pursuant to section
twenty-three hundred and twenty-six of the Revised Statutes,
title to the ground in controversy shall not be established
by either party, the jury shall so find, and judgment shall
be entered according to the verdict. In such case costs
shall not be allowed to either party, and the claimant shall
not proceed in the land-office or be entitled to a patent for
the ground in controversy until he shall have perfected his
title. — A. C. March S} 1881.
The rulings under the above Act are, that each
party is practically a plaintiff, and must show his
title; but that if neither show title the verdict must
be special — which is an assertion that the title re-
mains in the United States, so far, at least, as the
litigating parties are concerned. — Jackson v. Roby,
109 U. 8. 440; Rosenthal v. Ives, 15 M. R. 324. See
P. 446.
The effect of the Act is to prevent a recovery
upon possession alone in ejectment supporting ad-
verse.— Becker v. Pugh, 15 M. R. 304.
After judgment of title in neither party the Land
Office will not allow the application to be perfected.
— Newman v. Barnes, 23 L. D. 257.
It has been held that the Act does not prevent
a non-suit against Plaintiff. — Kirk v. Meldrum, 28
Colo. 459.
Entry of the Area Not in Dispute.
The Department has ruled that where the ad-
verse covers only parcel of the applying claim the
applicant may go to entry and patent on the area not
in controversy and without waiver of any rights, de-
fend against the contest of the adverse claimant in
the suit supporting adverse. — 2 L. D. 744; 22 L. D.
343.
Where the discovery shaft is upon the ground
excluded in favor of a prior Survey, such fact does
not invalidate the application where the applicant
450 ADVERSE CLAIM.
makes good his adverse for the excluded area. — 28
L. D. 321.
Proceedings After Determination of Suit.
The Land Office requirements in such case are
stated in Rule 8-5.
If the judgment is in favor of the defendant (the
applicant) he files a certified copy of the judgment
roll (14 L. D. 308), and is allowed to pay for and en-
ter the claim or so much thereof as has been
awarded to him.
If the judgment is in favor of the adversing
party, he files certified copy of the judgment roll, and
must obtain and file plat and survey, and file full set
of final entry papers; in fact, he must perform what-
ever is required of an applicant, except, of course,
the posting and publication.
The adverse claimant in such proceeding enters
only the area in conflict recovered by his judgment.
—27 L. D. 375. If he desire to patent his full claim
he must apply in all respects, including posting and
publication, as an original applicant.
In such case where he has already begun his ap-
. plication and excluded defendant's prior survey, the
judgment roll shows him entitled to and he is allowed
to enter such ground, although originally excluded.
If he does not begin his application until after he has
obtained judgment, his application will include the
areas formerly in conflict.
Where the suit is compromised, if there is only
one adverse, it is more convenient to dismiss the suit,
taking deed or bond for deed from the applicant. In
such case, upon filing certificate of dismissal, the
original survey goes to patent without further com-
plications, and the defendant can convey after entry
according to the terms of settlement.
But in all this class of cases, and especially where
there are two or more adverses, legal counsel should
be taken. A settlement between the applicant and
one adversor cannot bind a second adversor; there
may be questions of retaining end lines, or the dis-
ADVERSE CLAIM. 451
covery shaft, or patent improvements; and it may be
very material as affecting extralateral rights or on
the issue of priority, as to which lode takes the pat-
ented title.
An adjudication of priority in favor of part of a
lode seems to be an adjudication of priority on the
question arising in any later form of controversy
between the same lodes. — Last Chance Co. v. Tyler Co.
157 U. 8. 683. Bunker Hill Co. v. Empire Co. 109 Fed.
538; 114 Fed. 420.
Annual Labor Pending the Trial.
In the matter of the Marburg Lode, 30 L.. D. 202,
the department held that where entry has been stayed
by the operation of a protest or adverse, a delay not
chargeable to the applicant, the annual labor need
not be kept up. That it will not recognize as protest-
ant a relocation made during such interval, based on
non-performance of labor. If such be the correct
ruling we cannot see why it should not also apply
to the adversing claim. Questions of procedure in
the Land Office are for that office to decide. Con-
struction of statutes denning conditions of title are
for the courts. The question is so nearly one of the
latter class that in the absence of judicial decision
to the same effect it is wholly unsafe to neglect the
annual labor in reliance on this case. — See Rule 55; 31
L. D. 69.
Agreement to Not Adverse.
When contesting claimants agree with the appli-
cants to file no adverse in consideration of the appli-
cants undertaking to convey the title to the ground
in conflict or some other interest in the claim when
entry is made or patent issues — such agreement
should be formally reduced to writing under signa-
ture and seal. Such a contract is not against public
policy and will be enforced. — St. Louis Co. v. Montana
Co. 171 U. S. 650. In Ducie v. Ford, 138 U. S. 587, a
case of this kind but the contract verbal, it was held
to be within the Statute of Frauds, i. e., a contract
void unless written, and the plaintiff went without
452 PROTEST.
relief. The decision, however, is largely based on
asserted defects in the pleadings and can hardly be
considered as holding .that so gross an instance of
wrong would be in all cases shielded by that statute.
PROTEST.
The office of a protest is to show that no patent,
such as applied for, should issue — as where a mill site
patent is asked for on mineral ground.
. Or that it should not issue to the particular appli-
cant by reason of some defect of person, as that the
applicant is an alien corporation; or for failure to
comply with the practice of the department in some
serious particular. It is not safe to rely on the pre-
sumption that the Land Office will of its own motion
observe every departure from its own rules.
The protestant can never by his protest acquire
title. He can at most defeat the efforts of the appli-
cant. But if the protest be sustained and the appli-
cant compelled to begin de novo, as for instance
where the irregularity pointed out to the department
is a short publication and he is required to go back
to that point and republish — upon the new proceed-
ings or the republication the protestant has the oppor-
tunity to file his adverse claim. Any stranger to the
original application would have the same right. — 23
L. D. 395.
The fact that the protestant is or claims to be
the real owner, or to have the better title, has its
place in an adverse and is not a ground of protest. —
22 L. D. 624; but it should be averred to give stand-
ing to the protestant.
A protestant claiming an interest is allowed the
right of appeal.— 8 L. D.-122; 16 Id. 532; 29 Id. 230.
But if he has no such interest he is regarded as a
mere amicus curiae and has no such right. — 8 L. D.
439. A party having no surface conflict is not such a
PROTEST. . 453
party in interest as to have the right to appeal. — 6
D. D. 318; 19 Id. 356. Nor has a party whose only
claim is by location made after the protest was filed.
— 19 L. D. 356.
The department will entertain a protest as pro-
vided in R. S. Sec. 2325, showing that "the applicant
has failed to comply wth the terms of this chapter" —
that is, has made a substantially irregular step in
his location or in his proceedings to obtain patent, as
for instance that he has not disclosed mineral in his
discovery shaft or elsewhere within the lines of the
claim (2 L. D. 743; 17 Id. 112; 27 Id. 396}, or that the
publication was defective, the $500 improvements not
made (19 D. D. 356; 27 Id. 396), or any other serious
want of conformity to the law or to the Land Office
regulations.— 16 L. D. 532.
But the fact that the discovery is not upon the
public domain because upon a location of the pro-
testant's of alleged earlier date and other like points,
which if availed of by adverse would have shown
better title in the protestant, will not be considered as
grounds of protest.— 22 L. D. 624; 27 Id. 191; 26 Id.
580; 30 Id. 67.
The Test Between the Two Classes of Cases Is :
That where a defect exists which is a matter of pub-
lic interest, and which shows that the applicant
has not proceeded regularly as to the United States
or as to the entire body of prospectors who are en-
titled to see that all are required to proceed under
like restrictions, a protest will be considered; but
where the point is one of interest only as between the
applicant' and the protestant, or as between the appli-
cant and a third party who is not complaining (21
L. D. 30; Mod. on Review, Id. 544), the protestant can-
not by his protest claim the right to litigate in this
form what he should have contested on the adverse.
454 . PROTEST.
FORM OF PROTEST.
In the matter of the Application of The Anaconda Mining
Company for patent on the Martha Becker Mill Site,
Survey Lot No. 930 B. Pueblo Land Office, Colorado.
*To the Register and Receiver of said United States Land
Office :
Your protestant, C. H. Aldrich, whose postoffice ad-
dress is Chicago,, Illinois, a citizen of the United States over
the age of twenty-one years, hereby respectfully protests
against the entry by, and issuance of patent to, The Ana-
conda Mining Company, on their so-called mill site styled
the Martha Becker Mill Site, Survey Lot No. 930 B, situate
in Cripple Creek Mining District, County of Teller, State of
Colorado. Because :
1. The said so-called mill site is not and never was
used or occupied in connection with the said Martha Becker
Lode for mining or milling purposes.
2. It is not and never was used or occupied by the
applicant or its grantors in connection with any lode or
' by itself for mining or milling purposes.
3. There are no improvements and never have been
any improvements upon said mill site except the improve-
ments made by your protestant.
4. The said mill site is below the mill and below
the tailrace of the mill of the said applicant company and
has never been and is not now parcel of nor appurtenant
to said mill, nor included within the mill site on which said
mill stands.
5. Said so-called mill site or a great part thereof,
the conflicting area being shown by the plat hereto at-
tached duly certified (see p. #4), was in good faith located
as the Lion Mill Site by your protestant in the year 1897
and long prior to the said application and is now being
used for mining purposes in connection with the Lion Lode,
lying immediately above the said mill site, owned and being
worked by your protestant.
(6 etc. ; 7 etc.) Add or substitute other reasons ac-
cording to the facts, e. y. — the publication was not posted
on the Land Office Bulletin during the period of newspaper
publication — the location of said mill site is on mineral land
and land more valuable for mineral than for mill site pur-
poses— etc.
Wherefore for these causes as verified by the affidavit
of your protestant attached hereto, and as well for the
want of proper proof that the said so-called Martha Becker
Mill Site is being "used or occupied by the proprietor of
the said Martha Becker Lode for mining or milling pur-
poses," as required by the terms of section 2337 of the Re-
*In the General Land Office the address is "To The
Honorable the Commissioner of the General Land Office."
In the Department "To The Honorable the Secretary of the
Interior."
TIDE LANDS. 455
vised Statutes of the United States, and that the applicant
has otherwise failed to comply with the terms of Chapter
6 of Title XXXII of said Revised Statutes, entitled "Min-
eral Lands and Mining Resources," your petitioner protests
as aforesaid.
P. J. DUGAN, Pueblo. C. H. ALDRICH.
Attorney for Protestant.
STATE OF COLORADO, ,County of Teller: ss.
Before me, the subscriber, E. H. Qniber, a Notary Pub-
lic in and for said County, personally appeared G. H.
Aldrich, who, being duly sworn, saith that he is the pro-
testant named in the foregoing protest subscribed by him ;
that he has read the same and knows the contents thereof,
and that the same and the matters and things therein stated
are true. C. H. ALDRICH.
Sworn and subscribed before me this 10th day of Jan-
uary, A. D. 1903. E. H. Gniber,
[SEAL.] Notary Public.
TIDE LANDS.
Minerals lying between high and low tide, as
well as under the sea, in a Territory, belong to the
National Government, but they are not considered
part of the public domain open to the settler or occu-
pant under any form of entry. Upon admission of
the Territory this sovereignty passes to the State
Government.— 29 L. D. 396; SMvely v. Bowlby, 152
U. 8. 1.
By the Alaska. Act (p. 456) the tide lands of
Bering Sea are opened to exploration and mining, to
wit: the lands between high and low tide, under
miners' rules, and the lands below low tide under
rules to be prescribed by the Secretary of War. Such
latter rules are limited to "the preservation of order
and the protection of the interest of commerce" and
we see no reason why the rules generally of a dis-
trict on the beach should not extend to ground be-
low low tide on all points not covered by the Secre-
tary's rules.
The Act contemplates only the temporary work-
ing of this class of claims, not providing for patent
456 ALASKA.
to issue at any period. Except as to patenting, the
U. S. Mining Acts are extended to them, so far as
applicable, but the mining districts are especially em-
powered to make rules as to record, and impliedly
as to notice, staking, size of placer claims, labor,
representation and all other points not controlled by
the Acts of Congress. This doubtless includes the
right to restrain or control the location and repre-
sentation of claims by agency.
At other points, on shore of either State or Ter-
ritory, mining by the first occupant is a trespass as
against the Government, but no third party has the
right to complain.
The rights of parties mining on such premises
depend on priority of possession, and those rules of
law which govern that class of cases where the real
owner is not asserting his title but allows to third
parties the present enjoyment of the use, by suf-
ferance.
On July 14, 1900, General Order No. 18, was is-
sued by Brig. Gen. Randall under instructions from
the Hon. Secretary, on the matter of dredges and
recognizing priorities of the first claimant as stated
in the preceding paragraph.
ALASKA.
The following are the clauses of the Alaska Act
of June 6, 1900, 31 Stat. L. 321, material to mining
claimants. All the special clauses as to aliens were
rejected, and the status of mining titles is left the
same as in other States and Territories where there
are few or no statutory prescriptions, the Act evi-
dently contemplating control by district rules when
necessary or desired by the miners to supplement
the general terms of the mining Acts.
Section 13, Title I, provides for the division of
the Territory into three "recording divisions," the
ALASKA. 457
bounds of which were fixed by an act approved June
13, 1902.— Acts 57th Cong. p. 385.
The first division includes all the territory East
of the 141st degree of Longitude.
The second includes all territory W., N. W. and
N. of a line commencing at mouth of Colville River;
follow up the river to where it crosses the 154th
meridian line the second time; follow said meridian-
S. to west side of Tohtankella Mtn. and the Yukon
River; thence Southeasterly to western side of Mt.
McKinley; thence Southwesterly to most northern
point of Lake Clark; thence along N. W. side of Lake
Clark to 60th degree latitude; thence West along-
said degree to Kuskokwim Bay, including the main-
land West of said Bay and all islands N. of 59th de-
gree.
The third division includes "the rest of the Ter-
ritory.
These are to be subdivided into "recording dis-
tricts," and for each district a recorder has been or
is to be appointed.
The clerk of the court is ex ojficio recorder of all
that part of any recording division not set off into
recording districts.
Record of Claims.
Sec. 15. — * * * Notices of location of mining
claims shall be filed for record within ninety days from the
date of the discovery of the claim described in the notice,
and all instruments shall be recorded in the recording dis-
trict in which the property or subject-matter affected by
the instrument is situated, and where the property or sub-
ject-matter is not situated in any established recording dis-
trict the instrument affecting the same shall be recorded in
the office of the clerk of the division of the court having
supervision over the recording division in which such prop-
erty or subject-matter is situated.
District Rules— Old Records.
Sec. 16. — * * * Miners in any organized mining
district may make rules and regulations governing the record-
ing of notices of location of mining claims, water rights,
flumes and ditches, mill sites and affidavits of labor, not in
conflict with this Act or the general laws of the United
States ; and nothing in this Act shall be construed so as to
prevent the miners in any regularly organized mining district
not within any recording district established by the court
458 ALASKA.
from electing their own mining recorder to act as such
until a recorder therefor is appointed by the court : Provided
further. All records heretofore regularly made by the United
States commissioner at Dyea, Skagway, and the recorder
at Douglas City, not in conflict with any records regularly
made with the United States commissioner at Juneau, are
hereby legalized. And all records heretofore made in good
faith in any regularly organized mining district are hereby
made public records, and the same shall be delivered to
.the recorder for the recording district including such min-
ing district within six months from the passage of this Act.
Mining Acts Extended — Tide Lands and Sub-Sea
Minerals.
Sec. 26. — The laws of the United States relating to.
mining claims, mineral locations, and rights incident thereto
are hereby extended to the district of Alaska ; Provided,
That subject only to such general limitations as may be
necessary to exempt navigation from artificial obstructions
all land and shoal water between low and mean high tide
on the shores, bays, and inlets of Bering Sea, within the
jurisdiction of the United States, shall be subject to explo-
ration and mining for gold and other precious metals by
citizens of the United States, or persons who have legally
declared their intentions to become such, under such rea-
sonable rules and regulations as the miners in organized min-
ing districts may have heretofore made or may hereafter
make governing the temporary possession thereof for ex-
ploration and mining purposes until otherwise provided by
law ; Provided further, That the rules and regulations es-
tablished by the miners shall not be in confliflct with the
mining laws of the United States ; and no exclusive permit
shall be granted by the Secretary of War authorizing any
person or persons, corporation or company to excavate or
mine under any of said waters below low tide, and if such
exclusive permit has been granted it is hereby revoked and
declared null and void ; but citizens of the United States
or persons who have legally declared their intention to
become such shall have the right to dredge and mine for
gold or other precious metals in said waters, below low
tide, subject to such general rules and regulations as the
Secretary of War may prescribe for the preservation of order
and the protection of the interests of commerce ; such rules
and regulations shall not, however, deprive miners on the
beach of the right hereby given to dump tailings into or
pump from the sea opposite their claims, except where
such dumping would actually obstruct navigation, and the
reservation of a roadway sixty feet wide, under the tenth
section of the Act of May fourteenth, eighteen hundred and
ninety-eight, entitled "An Act extending the homestead laws
and providing for right of way for railroads in the District
of Alaska, and for other purposes," shall not apply to mineral
lands or town sites. — Approved June 6, WOO.
PHILIPPINE ISLANDS. 459
Water Rights and Labor Affidavits.
The Act provides for the record of "Notices and
declaration of water rights" and "Affidavits of annual
work done on mining claims" — thus recognizing the
' general custom as to such papers, not prescribing
their form or effect but leaving that to the mining
district rules. — Sec. 15.
The coal land laws are extended to embrace
Alaska by A. C. June 6, 1900—31 St. L. 658.
Titles Prior to 1900.
From 1884 to 1900 (23 St. L. 24) the Laws of
Oregon so far as they covered the subject were in
force. Those statutes only required a location no-
tice and record and forbade more than one location by
the same person on the same lode. The universal
terms of Sec. 2324 of course applied. And all posses-
sory claims prior to the Act of 1884 were validated
by the Act of that year. — Bennett v. Harkrader, 158
u. S. 443.
PHILIPPINE ISLANDS.
An extremely detailed and complicated mining
code for the Philippines is contained in the Act of
July 1, 1902, providing a temporary government for
those islands. — Acts 5Wi Cong. p. 697.
460 U. S. STATUTES REPEALED.
TEXT OF IT. S. STATUTES REPEALED.
Sections of Act of July 26, 1866, Repealed by Act
of May 10, 1872, and Not Found in
the Revised Statutes.
Original License to Explore.
Sec. 1. — That the mineral lands of the public domain,
both surveyed and unsurveyed, are hereby declared to be free
and open to exploration and occupation by all citizens of
the United States, and those who have declared their in-
tention to become citizens, subject to such regulations as
may be prescribed by law, and subject also to the local cus-
toms or rules of miners in the several mining districts, so
far as the same may not be in conflict with the laws of
the United States.
Improvements — Dip — Patent.
Sec. 2. — That whenever any person or association of
persons claim a vein or lode of quartz, or other rock in place,
bearing gold, silver, cinnabar, or copper, having previously
occupied and improved the same according to the local cus-
tom or rules of miners in the district where the same is
situated, and having expended in actual labor and improve-
ments thereon an amount of not less than one thousand
dollars, and in regard to whose possession there is no con-
troversy or opposing claim, it shall and may be lawful
for said claimant or association of claimants to file in the
local land office a diagram of the same, so extended laterally
or otherwise as to conform to the local laws, customs, and
rules of miners, and to enter such tract and receive a patent
therefor, granting such mine, together with the right to
follow such vein or lode with its dips, angles, and vari-
ations, to any depth, although it may enter the land ad-
joining, which land adjoining "shall be sold subject to this
condition.
Application for Patent.
Sec. 3. — That upon the filing of the diagram as pro-
vided in the second section of this act, and posting the same
in a conspicuous place on the claim, together with a notice
of intention to apply for a patent, the register of the land
office shall publish a notice of the same in a newspaper pub-
lished nearest to the location of said claim, and shall also
post such notice in his- office for the period of ninety days ;
U. S. STATUTES REPEALED. 461
and after the expiration of said period, if no adverse claim
shall hav£ been filed, it shall be the duty of the surveyor-
general, upon application of the party, to survey the prem-
ises and make a plat thereof, indorsed with his approval,
designating the number and description of the location, the
value of the labor and improvements, and the character of the
vein exposed ; and upon the payment to the proper officer
of five dollars per acre, together with the cost of such sur-
vey, plat, and notice, and giving satisfactory evidence that
said diagram and notice have been posted on the claim dur-
ing said period of ninety days, the register of the land office
shall transmit to the general land office said plat, survey,
and description ; and a patent shall issue for the same there-
upon. But said plat, survey, or description shall in no case
cover more than one vein or lode, and no patent shall issue
for more than one vein or lode, which shall be expressed in
the patent issued.
Form of Survey — Length of Claim.
Sec. 4. — That when such location and entry of a mine
shall be upon unsurveyed lands, it shall and may be lawful,
after the extension thereto of the public surveys, to adjust
the surveys to the limits of the premises according to the
location and possession and plat aforesaid, and the surveyor-
general may, in extending the surveys, vary the same from
a rectangular form to suit the circumstances of the country
and the local rules, laws, and customs of miners : Provided,
That no location hereafter made shall exceed two hundred
feet in length along the vein for each locator, with an addi-
tional claim for discovery to the discoverer of the lode,
with the right to follow such vein to any depth, with all its
dips, variations, and angles, together with a reasonable quan-
tity of surface for the convenient working of the same as
fixed by local rules : And provided further. That no person
may make more than one location on the same lode, and
not more than three thousand feet shall be taken in any one
claim by any association of persons. — See pages 11^, 20.
Adverse Claims.
Sec. 6. — That whenever any adverse claimants to any
mine located and claimed as aforesaid shall appear before
the approval of the survey, as provided in the third section
of this act, all proceedings shall be stayed until a final set-
tlement and adjudication in the courts of competent juris-
diction of the rights of possession to such claim, when a
patent may issue as in other cases. — Ify St. L. 251.
TEXT OP U. S. STATUTES.
FULL TEXT OF UNITED STATES LAWS NOW
IN FORCE.
The text is taken from the last edition "Revised
Statutes of the United States," and the Supplement
and Statutes at Large to First Session of 57th Con-
gress, 1902. This revision includes the unrepealed
sections of
An Act granting the right of way to ditch and canal
owners over the public lands, and for other purposes. — Ap-
proved July 26, 1866.
An Act to amend an Act granting the right of way
to ditch and canal owners over the public lands, and for
other purposes. — Approved July 9, 1870.
An act to promote the development of the mining re-
sources of the United States. — Approved May 10, 1872.
Commonly called the "Mining Acts," with all
their amendments, and miscellaneous sections from
other Acts.
The sections of the Act of 1866 repealed by the
Act of 1872, are printed, ante p. 400.
TITLE XIII, CHAPTER SEVENTEEN.
Possessory Actions.
Sec. 910. — No possessory action between persons, in
any court of the United States, for the recovery of any
mining title, or for damages to any such title, shall be af-
fected by the fact that the paramount title to the land
in which such mines lie is in the United States ; but each
case shall be adjudged by the law of possession. — Sec. 9, Feb.
27, 1865. See page 10.
TITLE XXXII, CHAPTER SIX.
ENTITLED "MINERAL LANDS AND MINING RESOURCES."
Keserved from Sale Under the Pre-Emption Acts.
Sec. 2318. — In all cases lands valuable for minerals
shall be reserved from sale, except as otherwise expressly
directed by law. — Sec. 5, July //, 1866.
NOTE. — Bach Statute. State or Federal, printed in this
book, has been compared with the official original publica-
tion so as to have its exact wording and punctuation.
TEXT OP U. S. STATUTES. 463
General License.
Sec. 2319. — All valuable mineral deposits in lands be-
longing to the United States, both surveyed and unsurveyed,
are hereby declared to be free and open to exploration and
purchase, and the lands in which they are found to occupa-
tion and purchase, by citizens of the United
District States and those who have declared their
Rules intention to become such, under regulations
prescribed by law, and according to the local
customs or rules of miners in the several mining-districts,
so far as the same are applicable and not inconsistent with
the laws of the United States. — Sec. 1, May 10, 1872. Sec
page 10.
Length of Claims.
Sec. 2320. — Mining-claims upon veins or lodes of
quartz or other rock in place bearing gold, silver, cinnabar,
lead, tin, copper, or other valuable deposits, heretofore lo-
cated, shall be governed as to length along the vein or lode
by the customs, regulations, and laws in force at the date
of their location. A mining-claim located after the tenth day
of May, eighteen hundred and seventy-two, whether located
by one or more persons, may equal, but shall
•nio^Tr^t-Tr not exceed, one thousand five hundred feet
discovery in length aiong the vein or lode ; but no lo-
Essential. cation of a mining-claim shall be made un-
Width of til the discovery of the vein or lode within
p, . the limits of the claim located. No claim
Claims. shall extend more than three hundred feet
on each side of the middle of the vein at
the surface, nor shall any claim be limited by any mining
regulation to less than twenty-five feet on each side of the
middle of the vein at the surface, except where adverse rights
existing on the tenth day of May, eighteen hundred and
seventy-two, render such limitation necessary. The end-
lines of each claim shall be parallel to each other. — Sec 2,
May 10, 1872. See pages W, 22 27.
Proof of Citizenship.
Sec. 2321. — Proof of citizenship, under this chapter,
may consist, in the case of an individual, of his own affidavit
thereof ; in the case of an association of persons unincor-
porated, of the affidavit of their authorized agent, made on
his own knowledge, or upon information and
Citizenship of belief ; and in the case of a corporation or-
Corporations. ganized under the laws of the United
States, or of any State or Territory thereof,
by the filing of a certified copy of their charter or certificate
of incorporation. — Sec. 7, May 10, 1872. See page 399.
Surface — Dip and Side Veins.
• Sec. 2322. — The locators of all mining locations here-
tofore made or which shall hereafter be made, on any min-
eral vein, lode, or ledge, situated on the public domain, their
464 TEXT OF U. S. STATUTES.
heirs and assigns, where no adverse claim exists on the tenth
day of May, eighteen hundred and seventy-two, so long as
they comply with the laws of the United States, and with
State, territorial, and local regulations not in conflict with
the laws of the United States governing their possessory title,
shall have the exclusive right of possession and enjoyment
of all the surface included within the lines of their locations,
and of all veins, lodes, and ledges through-
Top or Apex out their entire depth, the top or apex of
Controls which lies inside of such surface-lines ex-
tended downward vertically, although such
veins, lodes, or ledges may so far depart from a perpendic-
ular in their course downward as to extend outside the ver-
tical side-lines of such surface locations. But their right
of possession to such outside parts of such veins or ledges
shall be confined to such portions thereof as lie between
vertical planes drawn downward as above described, through
the end-lines of their locations, so contin-
« r ued in their own direction that such planes
ounace. will intersect such exterior parts of such
veins or ledges. And nothing in this sec-
tion shall authorize the locator or possessor of a vein or lode
which extends in its downward course beyond the vertical
lines of his claim to enter upon the surface of a claim owned
or possessed by another. — Sec. 3, May 103 1872. See pages
Itf, 156.
Tunnels.
Sec. 2323. — Where a tunnel is run for the development
of a vein or lode, or for the discovery of mines, the owners
of such tunnel shall have the right of possession of all
veins or lodes within three thousand feet from the face
of such tunnel on the line thereof, not previously known
to exist, discovered in such tunnel, to the same extent as
if discovered from the surface ; and locations on the line
of such tunnel of veins or lodes not appearing on the sur-
face, made by other parties after the commencement of the
tunnel, and while the same is being prosecuted with reason-
able diligence, shall be invalid ; but failure to prosecute the
work on the tunnel for six months shall be considered as
an abandonment of the right to all undiscovered veins on
the line of such tunnel. — Sec. 4, May 10f 1872. See page 225.
District Rules.
Sec. 2324. — The miners of each mining-district may
make regulations not in conflict with the laws of the United
States, or with the laws of the State or Territory in which
the district is situated, governing the location, manner of
recording, amount of work necessary to hold possession of a
mining-claim, subject to the following re-
Location, quirements : The location must be dis-
Record. tinctly marked on the ground so that - its
boundaries can be readily traced. All rec-
ords of mining-claims hereafter made shall contain the name
TEXT OF U. S. STATUTES. 465
or names of the locators, the date of the location, and such
a description of the claim or claims located by reference
to some natural object or permanent monument as will
identify the claim. On each claim located after the
tenth day of May, eighteen hundred and
Annual seventy-two, and until a patent has been is-
Labor. sued therefor, not less than one hun-
dred dollars' worth of labor shall be per-
formed or improvements made during each year. On all
claims located prior to the tenth day of May, eighteen hun-
dred and seventy-two, ten dollars' worth of labor shall be
performed or improvements made by the * tenth day of June,
eighteen hundred and seventy-four, and each year thereafter,
for each one hundred feet in length along the vein until a
Eatent has been issued therefor ; but where such claims are
eld in common, such expenditure may be made upon any one
claim ; and upon a failure to comply with these conditions,
the claim or mine upon which such failure occurred shall
be open to relocation in the same manner as if no location
of the same had ever been made, provided that the original
locators, their heirs, assigns, or legal representatives, have
not resumed work upon the claim after fail-
ure an(* bef°re such location. Upon the
failure of any one of several co-owners to
contribute Ms proportion of the expendi-
tures required hereby, the co-owners who have performed the
labor or made the improvements may, at the expiration of
the year, give such delinquent co-owner personal notice in
writing or notice by publication in the newspaper published
nearest the claim, for at least once a week for ninety days,
and if at the expiration of ninety days after such notice
in writing or by publication such delinquent should fail
or refuse to contribute his proportion of the expenditure
required by this section, his interest in the claim shall be-
come the property of his co-owners who have made the re-
quired expenditures. — Sec. 5, May 10, 1872. See pages 67, 88,
107.
Amendment of 1875 — Labor by Tunnel.
That section two thousand three hundred and twenty-
four of the Revised Statutes be, and the same is hereby,
amended so that where a person or company has or may run
a tunnel for the purposes of developing a lode or lodes,
owned by said person or company, the money so expended
in said tunnel shall be taken and considered as expended
on said lode or lodes, whether located prior to or since the
passage of said act ; and such person or company shall not
be require'd to perform work on the surface of said lode or
lodes in order to hold the same as required by said act. — Sec.
1, Feb. 11, 1875. Sap. 62. See page 233.
•"Instead of June 10, 1874, the date ultimately fixed
was January 1, 1875. See note, page 88.
466 TEXT OF U. S. STATUTES.
Amendment of 1880 — Annual Labor Period Fixed.
That section twenty-three hundred and twenty -four of
the Revised Statutes of the United States be amended by
adding the following words : "Provided^ That the period
within which the work required to be done annually on all
unpatented mineral claims shall commence on the first day
of January succeeding the date of location of such claim,
and this section shall apply to all claims located since the
tenth day of May, anno Domini eighteen hundred and sev-
enty-two."— Sec. 2, January 22, 1880. Sup. 276. Sec payc 88.
Application For Patent.
Sec. 2325. — A patent for any land claimed and located
for valuable deposits may be obtained in the following man-
ner : Any person, association, or corporation authorized to
locate a claim under this chapter, having claimed and located
a piece of land for such purposes, who has, or have, complied
with the terms of this chapter, may file in the proper
land-office an application for a patent, under oath, showing
such compliance, together with a plat and field-notes of the
claim or claims in common, made by or under the direction
of the United States surveyor-general, showing accurately
the boundaries of the claim or claims, which shall be
distinctly marked by monuments on the ground, and shall
post a copy of such plat, together with a notice of such
application for a patent, in a conspicuous place on the
land embraced in such plat previous to the filing of the
application for a patent, and shall file an affidavit of at
least two persons that such notice has been duly posted,
and shall file a copy of the notice in such land-office, and
shall thereupon be entitled to a patent for the land, in the
manner following : The register of the land-office, upon the
, filing of such application, plat, field-notes,
60 Days notices, and affidavits, shall publish a notice
Publication, that such application has been made, for the
period of sixty days, in a newspaper to be
by him designated as published nearest to such claim ; and
he shall also post such notice in his office for the same
period. The claimant at the time of filing this application,
or at any time thereafter, within the sixty days of pub-
lication, shall file with the register a certificate of the
United States surveyor-general that five
$500 Improve- hundred dollars' worth of labor has been
ments expended or improvements made upon the
claim by himself or grantors ; thajt the plat
is correct, with such further description by such reference
to natural objects or permanent monuments as shall iden-
tify the claim, and furnish an accurate description, to be
incorporated in the patent. At the expiration of the sixty
days of publication the claimant shall file his affidavit, show-
ing that the plat and notice have been posted in a conspicu-
TEXT OP U. S. STATUTES. 467
ous place on the claim during such peiiocl
Adverse. of publication. If no adverse claim shall
Claim. have been filed with the register and the
receiver of the proper land-office at the ex-
piration of the sixty days of publication, it shall be assumed
that the applicant is entitled to a patent, upon the payment
to the proper officer of five dollars per acre,
$5 per and that no adverse claim exists ; and
Acre. thereafter no objection from third parties
to the issuance of a patent shall be heard,
except it be shown that the applicant has failed to comply
with the terms of this chapter. — Sec. 6, May 10, 1S72. Sec AP-
PLICATION FOR PATENT, p. 382.
Applications by Non-Kesidents.
That section twenty-three hundred and twenty-five of
the Revised Statutes of the United States be amended by add-
ing thereto the following words : "Provided, That where the
claimant for a patent is not a resident of or within the land
district wherein the vein, lode, ledge, or deposit sought to
be patented is located, the application for patent and the
affidavits required to be made in this section by the claim-
ant for such patent may be made by his, her, or its author-
ized agent, where said agent is conversant with the facts
sought to be established by said affidavits :
And provided, That this section shall apply to all
applications now pending for patents to mineral lands."—
Sec. 1, January 22, 1880. Sup. 276. See p. J,12.
Adverse Claims.
Sec. 2326. — Where an adverse claim is filed during the
period of publication, it shall be upon oath of the person
or persons making the same, and shall show the nature,
boundaries, and extent of such adverse claim, and all pro-
ceedings, except the publication of notice and making and
filing of the affidavit thereof, shall be stayed until the con-
Suit Support- troversy snail have been settled or decided
itio- in ^ a court °^ competent jurisdiction, or the
inS m 3° adverse claim waived. It shall be the duty
Days. of the adverse claimant, within thirty days
after filing his claim, to commence proceedings in a court
of competent jurisdiction, to determine the question of the
right of possession, and prosecute the same with reasonable
Proceedings diligence to final judgment ; and a failure
so to do shall be a waiver of his adverse
claim. After such judgment shall have
Judgment. been rendered, the party entitled to the pos-
session of the claim, or any portion thereof, may, without
giving further notice, file a certified copy of the judgment-
roll with the register of the land-office, together with the
certificate of the surveyor-general that the requisite amount
of labor has been expended or improvements made thereon,
and the description required in other cases, and shall pay
to the receiver five dollars per acre for his claim, together
468 TEXT OF U. S. STATUTES.
with the proper fees, whereupon the whole proceedings and
the judgment-roll shall be certified by the register to the
Commissioner of the General Land-Office, and a patent shall
issue thereon for the claim, or such portion thereof as the
applicant shall appear, from the decision of the court, to
rightly possess. If it appears from the decision of the
court that several parties are entitled to separate and differ-
ent portions of the claim, each party may pay for his por-
tion of the claim, with the proper fees, and file the certificate
and description by the surveyor-general, whereupon the reg-
ister shall certify the proceedings and judgment-roll to the
Commissioner of the General Land-Office, as in the preced-
ing case, and patents shall issue to the several parties ac-
cording to their respective rights. Nothing herein contained
shall be construed to prevent the alienation of the title
conveyed by a patent for a mining-claim to any person
whatever. — Sec. 7, May 10, 1872. See p. $1.
Title in Neither Party.
That if, in any action brought pursuant to section
twenty-three hundred and twenty-six of the Revised Statutes,
title to the ground in controversy shall not be established
by either party, the jury shall so find, and judgment shall
be entered according to the verdict. In such case costs shall
not be allowed to either party, and the claimant shall not
proceed in the land-office, or be entitled to a patent for the
ground in controversy until he shall have perfected his
title. — March 3, 1881. Sup. p. 32Jh
Adverse by Agent for Non-Residents.
That the adverse claim required by section twenty-
three hundred and twenty-six of the Revised Statutes may
be verified by the oath of any duly-authorized agent or at-
torney-in-fact of the adverse claimant cognizant of the facts
stated ; and the adverse claimant, if residing or at the
time being beyond the limits of the district wherein the
claim is situated, may make oath to the adverse claim be-
fore the clerk of any court of record of the United States
or of the State or Territory where the adverse claimant may
then be, or before any notary public of such State or Ter-
ritory-— Sec. 1, April 26, 1882. Sup. p. 338.
Affidavits Out of Land District.
That applicants for mineral patents, if residing be-
yond the limits of the district wherein the claim is situated,
may make any oath or affidavit required for proof of citi-
zenship before the clerk of any court of record or before
any notary public of any State or Territory. — Sec. 2, Id.
Survey.
Sec. 2327. — The description of vein or lode claims,
upon surveyed lands, shall designate the location of the
claim with reference to the lines of the public surveys, but
need not conform therewith ; but where a patent shall be is-
TEXT OP U. S. STATUTES. 469
sued for claims upon unsurveyed lands, the surveyor-gen-
eral, in extending the surveys, shall adjust the same to the
boundaries of such patented claim, according to the plat or
description thereof, but so as in no case to interfere with or
change the location of any such patented claim. — Sec. 8, May
10, 1872. See p, 417.
Previous Applications.
Sec. 2328. — Applications for patents for mining-claims
under former laws now pending may be prosecuted to a
final decision in the General Land-Office ; but in such cases
where adverse rights are not affected thereby, patents may
issue in pursuance of the provisions of this chapter ; and
Adverse a^ patents for mining-claims upon veins or
T?icrTit<j lodes heretofore issued shall convey all the
xtignifc rights and privileges conferred by this chap-
Excepted. ter where no adverse rights existed on the
tenth day of May, eighteen hundred and seventy-two. — Sec.
9, May 10, 1872. See page 1^1,.
Placers Open to Entry.
Sec. 2329. — Claims usually called "placers," including
all forms of deposit, excepting veins of quartz, or other rock
in place, shall be subject to entry and patent, under like cir-
cumstances and conditions, and upon similar proceedings,
as are provided for vein or lode claims ; but where the lands
have been previously surveyed by the United States, the
entry in its exterior limits shall conform to the legal sub-
divisions of the public lands. — Sec. 12, July 9, 1870. See
page 190.
Oil Placer Act.
That any person authorized to enter lands under the
mining laws of the United States may enter and obtain
patent to lands containing petroleum or other mineral oils,
and chiefly valuable therefor, under the provisions of the
laws relating to placer mineral claims : Provided, That
lands containing such petroleum or other mineral oils which
have heretofore been filed upon, claimed, or improved as
mineral, but not yet patented, may be held and patented
under the provisions of this Act the same as if such filing,
claim, or improvement were subsequent to the date of the
passage hereof. — Felt. 11, 1897. 29 St. L. 526. See page 192.
Saline Placer Act. .
That all unoccupied public lands of the United States
containing salt springs, or deposits of salt in any form, and
chiefly valuable therefor, are hereby declared to be subject
to location and purchase under the provisions of the law
relating to placer-mining claims : Provided, That the same
person 'shall not locate or enter more than one claim here-
under. — Jan. 31, 1901, 81 St. L. 11,5. See page 193.
ITu TEXT OF U. S. STATUTES.
Legal Subdivision of Placers.
Sec. 2330. — Legal subdivisions of forty acres may be
subdivided into ten-acre tracts ; and two or more persons,
or associations of persons, having contiguous claims of any
size, although such claims may be less than ten acres each,
may make joint entry thereof ; but no location of a placer-
claim, made after the ninth day of July,
160 Acre eighteen hundred and seventy, shall ex-
Placers ceed one hundred and sixty acres for any
one person or association of persons, which
location shall conform to the United States surveys ; and
nothing in this section contained shall defeat or impair any
bona-fide pre-emption or homestead claim upon agricultural
lands, or authorize the sale of the improvements, of any
bona-fide settler to any purchaser. — Sec. 12, July 9, 1870. Sec
payc WO.
Placers on Surveyed Lands.
Sec. 2331. — Where placer claims are upon surveyed
lands, and conform to legal subdivisions, no further survey
or plat shall be required, and all placer-mining claims lo-
cated after the tenth day of May, eighteen hundred and
seventy-two, shall conform as near as practicable with the
United States system of public-land surveys, and the rectang-
ular sub-divisions of such surveys, and no such location shall
include more than twenty acres for each individual claim-
ant ; but where placer-claims cannot be conformed to legal
subdivisions, survey and plat shall be made as on unsur-
yeyed lands ; and where by the segregation of mineral land
in any legal subdivision a quantity of agricultural land less
than forty acres remains, such fractional portion of agri-
cultural land may be entered by any party qualified by law,
for homestead or pre-emption purposes. — Sec. 10, Hay 10,
1872. See page 190.
Limitations.
Sec. 2332. — Where such person or association, they and
their grantors, have held and worked their claims for a
period equal to the time prescribed by the statute of limi-
tations for mining-claims of the State or Territory where
the same may be situated, evidence of such possession and
working of the claims for such period shall
j. be sufficient to establish a right to a pat-
l/iens. ent thereto under this chapter, in the ab-
sence of any adverse claim ; but nothing in
this chapter shall be deemed to impair any lien which may
have attached in any way whatever to any mining-claim
or property thereto attached prior to the issuance of a pat-
ent.— Sec. IS, July 9, 1870. See pp. 235, 338.
Placer Claim Containing Lode.
Sec. 2333. — Where the same person, association, or
corporation is in possession of a placer-claim, and also a
TEXT OP U. S. STATUTES. 471
vein or lode included within the boundaries thereof, appli-
cation shall be made for a patent for the placer-daim,
with the statement that it includes such vein or lode, and
in such case a patent shall issue for the placer-claim, sub-
ject to the provisions of this chapter, including such vein
or lode, upon the payment of five dollars per acre for such
vein or lode claim, and twenty-five feet of surface on each
side thereof. The remainder of the placer-
Placers $2.50 claim, or any placer-claim not embracing
per Acre. anv vein °r lode-claim, shall be paid for
at the rate of two dollars and fifty cents
per acre, together with all costs of proceedings ; and where
a vein or lode, such as is described in section twenty-three
hundred and twenty, is known to exist within the boundaries
of a placer-claim, an application for a patent for such
placer-claim which does not include an application for the
vein or lode claim shall be construed as a conclusive declara-
tion that the claimant of the placer-claim has no right of
possession of the vein or lode claim ; but where the existence
of a vein or lode in a placer-claim is not known, a patent
for the placer-claim shall convey all valuable mineral and
other deposits within the boundaries thereof. — Sec. 11, May
10, 1872. See page 202.
Deputy Surveyor and Fees.
Sec. 2334. — The surveyor-general of the United States
may appoint in each land-district containing mineral lands
as many competent surveyors as shall apply for appointment
to survey mining-claims. The expenses of the survey of
vein or lode claims, and the survey and subdivision of placer-
claims into smaller quantities than one hundred and sixty
acres, together with the cost of publication of notices, shall
be paid by the applicants, and they shall be at liberty to ob-
tain the same at the most reasonable rates, and they shall
also be at liberty to employ any United States deputy sur-
veyor to make the survey. The Commis-
Charges for sioner of the General Land-Office shall also
Publication, have power to establish the maximum
charges for surveys and publication of no-»
tices under this chapter ; and, in case of excessive charges
for publication, he may designate any newspaper published
in a land-district where mines are situated for the publi-
cation of mining-notices in such district, and fix the rates
to be charged by such paper ; and, to the end that the Com-
missioner may be fully informed on the subject, each appli-
cant shall file with the register a sworn statement of all
charges and fees paid by such applicant for publication and
surveys, together with all fees and money paid the register
and receiver of the land-office, which statement shall be
transmitted, with the other papers in the case, to the Com-
missioner of the General Land-Office. — Sec. 12, May 10, 1872.
See p. 36'-?.
472 TEXT OP U. S. STATUTES.
Affidavits and Proofs.
Sec. 2335. — All affidavits required to be made under
this chapter may be verified before any officer authorized to
administer oaths within the land-district where the claims
may be situated, and all testimony and proofs may be
taken before any such officer, and, when duly certified by
the officer taking the same, shall have the same force and
effect as if taken before the register and re-
Agncultural ceiver of the land-office. In cases of con-
Contest. test as to tne mineral or agricultural char-
acter of land, the testimony and proofs
may be taken as herein provided on personal notice of at
least ten days to the opposing party ; or if such party can-
not be found, then by publication of at least once a week
for thirty days in a newspaper, to be designated by the reg-
ister of the land-office as published nearest to the location
of such land ; and the register shall require proof that such
notice has been given. — Sec. 13, May 10, 1872. See p. 365.
Cross Veins.
Sec. 2336. — Where two or more veins intersect or cross
each other, priority of title shall govern, and such prior lo-
cation shall be entitled to all ore or mineral contained
within the space of intersection ; but the subsequent loca-
tion shall have the right of way through
Veins Uniting the space of intersection for the purposes
on the Dip. of the convenient working of the mine.
And where two or more veins unite, the old-
est or prior location shall take the vein below the point of
union, including all the space of intersection. — Sec. 1^, May
10, 1872. See pages 138, 1^2.
Mill Sites.
Sec. 2337. — Where non-mineral land not contiguous to
the vein or lode is used or occupied by the proprietor of
such vein or lode for mining or milling purposes, such
non-adjacent surface-ground may be embraced and included
in an application for a patent for such vein or lode, and
the same may be patented therewith, subject to the same
preliminary requirements as to survey and notice as are ap-
plicable to veins or lodes ; but no location hereafter made
of such non-adjacent land shall exceed five acres, and pay-
ment for the same must be made at the same rate as 'fixed
by this chapter for the superficies of the lode. The owner
of a quartz-mill or reduction-works, not owning a mine in
connection therewith, may also receive a patent for his mill-
site, as provided in this section. — Sec. 15, Hay 10, 1872. See
page 212.
Easements.
Sec. 2338. — As a condition of sale, in the absence of
necessary legislation by Congress, the local legislature of
any State or Territory may provide rules for working mines,
TEXT OF U. S. STATUTES. 473
involving easements, drainage, and other necessary means
to their complete development, and those conditions shall be
fully expressed in the patent. — Sec. 5, July 26, 1866. See
page 186.
Water Eights — Appropriation.
Sec. 2339. — Whenever, by priority of possession, rights
to the use of water for mining, agricultural, manufacturing,
or other purposes, have vested and accrued, and the same
are recognized and acknowledged by the local customs, laws,
and the decisions of courts, the possessors and owners of
such vested rights shall be maintained and protected in the
same ; and the right of way for the construction of ditches
and canals for the purposes herein specified is acknowledged
and confirmed ; but whenever any person, in the construc-
tion of any ditch or canal, injures or damages the posses-
sion of any settler on the public domain, the party commit-
ting such injury or damage shall be liable to the party
injured for such injury or damage.— Sec. 9, July 26, 1866. See
page 179.
Patents Subject to Water Easements.
Sec. 2340. — All patents granted, or pre-emption or
homesteads allowed, shall be subject to any vested and ac-
crued water-right, or rights to ditches and reservoirs used
in connection with such water-rights, as may have been ac-
quired under or recognized by the preceding section. — Sec.
17, July 9, 1870. See page 179.
Homesteads.
Sec. 2341. — Wherever, upon lands heretofore desig-
nated as mineral lands, which have been excluded from sur-
vey and sale, there have been homesteads made by citizens
of the United States, or persons who have declared their
intention to become citizens, which homesteads have been
made, improved, and used for agricultural purposes, and
upon which there have been no valuable mines of gold, sil-
ver, cinnabar, or copper discovered, and which are properly
agricultural lands, the settlers or owners of such home-
steads shall have a right of pre-emption thereto, and shall
be entitled to purchase the same at the price of one dol-
lar and twenty-five cents per acre, and in quantity not to
exceed one hundred and sixty acres ; or they may avail
themselves of the provisions of chapter five of this Title, re-
lating to "HOMESTEADS." — Sec. 10, July 26, 1866.
Segregation of Agricultural Lands.
Sec. 2342. — Upon the survey of the lands described in
the preceding section, the Secretary of the Interior may
designate and set apart such portions of the same as are
clearly agricultural lands, which lands shall thereafter be
subject to pre-emption and sale as other public lands, and
be subject to all the laws and regulations applicable to the
same. — Sec. 11, July 26, 1866.
474 TEXT OF U. S. STATUTES.
Land Districts.
Sec. 2343. — The President is authorized to establish
additional land-districts, and to appoint the necessary offi-
cers under existing laws, wherever he may deem the same
necessary for the public convenience in executing the pro-
visions of this chapter. — Sec. 7, July 26, 1866.
Vested Eights.
Sec. 2344. — Nothing contained in this chapter shall be
construed to impair, in any way, rights or interests in min-
ing property acquired under existing laws ; nor to affect the
provisions of the act entitled "An act granting to A. Sutro
the right of way and other privileges to aid in the construc-
tion of a draining and exploring tunnel to the Comstock
lode, in the State of Nevada," approved July twenty-five,
eighteen hundred and sixty-six. — Sec. 11, July 9, 1870. Sec.-
16, May 10, 1872.
Sec. 2345. — Excepts Michigan, Wisconsin and Minne-
sota.*
State and Railroad Grants.
Sec. 2346. — No act passed at the first session of the
Thirty-eighth Congress, granting lands to States or corpora-
tions to aid in the construction of roads or for other pur-
poses, or to extend the time of grants made prior to the
thirtieth day of January, eighteen hundred and sixty-five,
shall be so construed as to embrace mineral lands, which
in all cases are reserved exclusively to the United States,
unless otherwise specially provided in the act or acts mak-
ing the grants.— Ties. No. 10, January 30, 1865.
Rights of Canadians in Alaska.
Sec. 13. — That native-born citizens of the Dominion of
Canada shall be accorded in said District of Alaska the
same mining rights and privileges accorded to citizens of
the United States in British Columbia and the Northwest
Territory by the laws of the Dominion of Canada or the
local laws, rules, and regulations ; but no greater rights shall
be thus accorded than citizens of the United States or per-
sons who have declared their intention to become such
may enjoy in said District of Alaska ; and the Secretary of
the Interior shall from time to time, promulgate and en-
force rules and regulations to carry this provision into
effect. — Approved May 1%, 1898. 30 St. L. 415. See Rule 112,
p. 368.
By Act of May 21, 1896, the right of way for oil
pipe lines in Colorado and Wyoming is granted.
*By Act of May 5, 1876, Sup. 104, Missouri and Kan-
sas are excepted from the operation of the Mining Act. By
Act of March 3, 1883, Sup. 404* Alabama is excepted.
COAL LANDS. 475
As to lands on Military Reservations see Act of
July 5, 1884, 23 Stat. L. 104. Sup. 455. There are
many special Acts opening particular Military and
Indian Reservations.
COAL LANDS.
Legal Subdivisions.
Sec. 2347. — Every person above the age of twenty-one
years, who is a citizen of the United States, or who has
declared his intention to become such, or any association
of persons severally qualified as above, shall, upon applica-
tion to the register of the proper land-office, have the right
to enter, by legal subdivisions, any quantity of vacant coal-
lands of the United States not otherwise appropriated or
reserved by competent authority, not ex-
160 or 320 ceeding one hundred and sixty acres to such
Acres $10 to individual person, or three hundred and
A . twenty acres to such association, upon pay-
$20 per Acre. ment to the receiver of not less than ten
dollars per acre for such lands, where the same shall be
situated more than fifteen miles from any completed rail-
road, and not less than twenty dollars per acre for such
lands as shall be within fifteen miles of such road. — Sec. .1,
March 3, 1873.
Settlers Preferred.
Sec. 2348. — Any person or association of persons sev-
erally qualified, as. above provided, who have opened and,
improved, or shall hereafter open and improve, any coal
mine or mines upon the public lands, and shall be in actual
possession of the same, shall be entitled to a preference-
right of entry, under the preceding section, of the mines so
opened and improved : Provided, That when
640 Acre any association of not less than four per-
Tracts. sons, severally qualified as above provided,
shall have expended not less than five thou-
sand dollars in working and improving any such mine or
mines, such association may enter not exceeding six hundred
and forty acres, including such mining improvements. — Sec.
2, Id.
Land Office Proceedings.
Sec. 2349. — All claims under the preceding section
must be presented to the register of the proper land-district
within sixty days after the date of actual possession and the
commencement of improvements on the land, by the filing
of a declaratory statement therefor ; but when the township
476 COAL LANDS.
plat is not on file at the date of such improvement, filing
must be made within sixty days from the receipt of such
plat at the district office ; and where the improvements shall
have been made prior to the expiration of three months
from the third day of March, eighteen hundred and seventy-
three, sixty days from the expiration of such three months
shall be allowed for the filing of a declaratory statement,
and no sale under the provisions of this section shall be
allowed until the expiration of six months from the third
day of March, eighteen hundred and seventy-three. — Sec.
3, Id.
Entry Limited.
Sec. 2350. — The three preceding sections shall be held
to authorize only one entry by the same person or associa-
tion of persons ; and no association of persons any member .
of which shall have taken the benefit of such sections, either
as an individual or as a member of any other association,
shall enter or hold any other lands under the provisions
thereof ; and no member of any association which shall have
taken the benefit of such sections shall enter or hold any
other lands under their provisions ; and all persons claim-
ing under section twenty-three hundred and forty-eight shall
be required to prove their respective rights and pay for the
lands filed upon within one year from the time prescribed
for filing their respective claims ; and upon failure to file
the proper notice, or to pay for the land within the re-
quired period, the same shall be subject to entry by any
other qualified applicant." — Sec. k, Id.
Conflicting Claims.
Sec. 2351. — In case of conflicting claims upon coal-
lands where the improvements shall be commenced, after
the third day of March, eighteen hundred and seventy-three,
priority of possession and improvement, followed by proper
filing ind continued good faith, shall determine the prefer-
ence-ri^'ht to purchase. And also wrhere improvements have
already been made prior to the third day of March, eighteen
hundred and seventy-three, division of the land claimed may
be made by legal subdivisions, to include, as near as may
be, the valuable improvements of the respective parties.
The Commissioner of the General Land-Office is authorized
to issue all needful rules and regulations for carrying into
effect the provisions of this and the four preceding sections.
— Sec. 5, Id.
Vested Rights — Lodes and Placers Excepted.
Sec. 2352. — Nothing in the five preceding sections shall
be construed to destroy or impair any rights which may
have attached prior to the third day of March, eighteen
hundred and seventy-three, or to authorize the sale of lands
valuable for mines of gold, silver, or copper. — Sec. 6, Id.
TIMBER ACT. 477
The proceedings to enter coal lands under the
above sections are regulated by Circular of the Gen-
eral Land Office of July 31, 1882, reissued December
28, 1897. A special survey of township containing
coal lands is provided for by 28 St. L. 423.
TIMBER ACT.
An Act authorizing the citizens of Colorado, Nevada
and the Territories to fell and remove timber on the public
domain for mining and domestic purposes.
Timber Free to Miners.
Be it enacted, etc., That all citizens of the United
States and other persons, bona fide residents of the State
of Colorado, or Nevada, or either of the Territories of New
Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Mon
tana, and all other mineral districts of the United States,
shall be, and are hereby, authorized and permitted to fell
and remove, for building, agricultural, mining, or other do-
mestic purposes, any timber or other trees growing or being
on the public lands, said lands being mineral, and not subject
to entry under existing laws of the United States, except for
mineral entry, in either of said States, Territories, or dis-
tricts of which such citizens or persons may be at the time
bona-fide residents, subject to such rules and regulations
as the Secretary of the Interior may prescribe for the pro-
tection of the timber and of the undergrowth growing upon
such lands, and for other purposes : Provided, the provisions
of this act shall not extend to railroad corporations.
Land Office Inspection.
Sec. 2. — That it shall be the duty of the register and
the receiver of any local land-office in whose district any
mineral land may be situated to ascertain from time to time
whether any timber is being cut or used upon any such
lands, except for the purposes authorized by this act, within
their respective land districts ; and, if so, they shall imme-
diately notify the Commissioner of the General Land Office
of that fact ;
And all necessary expenses incurred in making such
proper examination shall be paid and allowed such register
and receiver in making up their next quarterly accounts.
Penalty.
Sec. 3. — Any person or persons who shall violate the
provisions of this act, or any rules and regulations in pur-
suance thereof made by the Secretary of the Interior, shall
478 TIMBER ACT.
be deemed guilty of a misdemeanor, and, upon conviction,
shall be fined in any sum not exceeding five hundred dollars,
and to which may be added imprisonment for any term not
exceeding six months. — Approved June 3, 1878. — Sup. p. 166.
See U. 8. r. Copper Queen Co. 60 Pac. 885; U. S. v. Lynde, Jf7
Fed. 297.
The above Act in connection with the Acts of
March 3, 1891,' (2Q 8t. L. 1093) and February 13, 1893
(27 St. L. 444), are the Acts now in force controlling
the right to cut timber in the mining States and
Territories, except Alaska. They are construed by
Circulars of the Land Department, dated respectively
January 18th, and February 10th, 1900.— 2# L. D.
511, 572.
Lands valuable chiefly for timber but unfit for
cultivation may be sold in tracts not exceeding 160
acres at $2.50 per acre under the terms of the Acts
of June 3, 1878, 1 Sup. 167, and August 4, 1892, 2
Sup. 65.
Alaska.
Section 11, Act of 1898, 30 St. L. 414, allows free
use of timber to miners in Alaska.
TABLE OF CASES CITED.
479
TABLE OF CASES CITED.
Abbott v. Smith, Cited Page 272.
Ah He v. Crippen (19 Gal. 492),
285.
Ah Kle v. McLean, 284.
Ahren v. Dubuque Co. (48 Iowa
140), 178.
Ajax Co. v. Triumph Co. 333.
Alberson v. Elk Creek Co. 266.
Alder Gulch Co. v. Hayes, 184.
Alexander v. Sherman (16 Pac.
45), 117.
Alice Co. v. Street. 205.
Allen v. Dunlap, 327.
Alta Co. v. Benson Co. 92.
Altoona Co. v. Integral Co. 93,
283, 315, 338.
Amador Co. v. DeWitt, 231.
— v. South Spring Co. 165.
Amy-Silversmith Case, 162, 163.
Anaconda Co. v. Butte Co. 328.
Anchor v. Howe, 434.
Anderson v. Daily Co. 324.
v. Hapler, 310.
— v. Harvey (10 Qratt. 386),
328.
Anthony v. Jillson (83 Gal. 296),
197.
Anvil Co. v. Humble, 307.
Ardesco Co. v. Gilson (63 Pa. St.
11,6), 323, 324.
Argentine Co. v. Terrible Co. 162,
167, 173.
Argonaut Co. v. Kennedy. 156.
v. Turner, 132, 149.
Arkansas Val. Co. v. Belden Co.
306.
Armstrong v. Lower (6 Colo. 581,
393), 39, 112, 137, 149, 177.
Arnett v. Linhart, 183.
Arnold v. Baker (6 Neb. 134), 312.
Ashland Co. v. Wallace, 323.
Ashman v. Wigton, 218.
Aspen Co. v. llucker, 335.
Astiazaran v. Santa Rita Co. 285.
Atchison v. Peterson (20 Wall.
507), 180, 209, 210.
Atkins v. Hendree (1 Idaho, 107),
93, 141.
Atlantic Co. v. Ropes Co. 236.
Attersoll v. Stevens (1 Taunt. 183),
321.
Attwood v. Fricott (17 Gal. 38),
26, 317.
Aurora Hill Co. v. 85 Co. (34 Fed.
515), 92, 136.
Austin v. Berlin, 295.
Axiom Co. v. Little, 441.
— v. White, 102.
Aye v. Philadelphia Co. 85, 265.
Back v. Sierra Nev. Co. 232.
Bacon v. Thornton, 319.
Baird v. Williamson (15 C. B. N. 8.
376), 178.
Barker v. Dale, 87.
Barnard v. McKenzie (4 Colo.
251), 239.
Bartley v. Phillips, 265.
Basey v. Gallagher (20 Wall. 670),
180.
Bassick Co. v. Schoolfield, 239.
Bates v. Wilson, 439.
Baxter Co. v. Patterson, 53, 54.
Bay State Co. v. Brown, 314.
Beals v. Cone, 32, 34, 42, 56, 96,
102, 124.
Bean v. Pioneer Co. 324.
Beaver Co. v. St. Vrain Co. 86.
Beck v. O'Connor, 236.
Becker v. Pugh (9 Colo. 589), 19,
27, 111, 314, 316, 442, 449.
Belcher Co. v. Deferrari, 99.
Belk v. Meagher (3 Mont. 65; 104
U. S. 279), 81, 93, 101, 315.
Bell v. Bed Rock Co. (36 Gal. 214),
10, 87.
v. Denson, 339.
- v. Skillicorn, 170.
Bennett v. Harkrader, 74, 447,
459.
Bennitt v. Whitehouse (28 Beav.
119), 337.
480
TABLE OF CASES CITED.
Benson v. Alta Co. 92, 277, 320.
Berea Co. v. Kraft (SI Oh. St.
287), 324.
Berg v. Koegel, 77.
Berth a Co. v. Martin, 324.
Bicknell v. Austin Co. 266, 268.
Billings v. Aspen Co. 282, 283.
Bishop v. Baisley, 94, 102.
Black v. Elkhorn Co. 132, 249.
Blackburn v. Portland Co. 440.
Blackmore v. Reilly, 223.
Blake v. Butte Co. (2 UtaJi, 5%),
144.
v. Thome, 76, 117.
Blen v. Bear River Co. (20 Gal.
602), 257.
Bliss v. Kingdom, 230.
Block v. Murray, 241.
Bluebird Co. v. Larger, 154, 176.
v. Murray, 170, 337.
Boggs v. Merced Co. (14 Cal 279),
133, 135.
Boileau v. Heath, 189.
Bonner v. Meikle, 439.
Bonson v. Jones, 218.
Book v. Justice Co. 33, 54, 56, 95,
104, 141, 146, 153, 154, 176,
442.
Boston Co. v. Montana Co. 173,
247, 329, 332.
Bowman Lode, 42.
v. Patrick, 252.
Bracken v. Preston (1 Pinney,
584), 328.
Bradbury v. Davis (5 Colo. 265),
277.
Bradley v. Harkness (26 Cal. 69),
1 83
v. People, 312.
Brady v. Husby, 38, 318.
Bramlett v. Flick, 74, 82, 314.
Branagan v. Dulaney, 141.
Brewster v. Shoemaker, 32, 46,
172, 230.
Brown v. Caldwell (10 8. & R.1U),
310.
— v. '49 Co. (15 Cal. 152),
225, 496.
— v. Levan, 53, 74.
— v. Oregon Co. 83, 84, 113,
123.
Brownfield v. Bier, 204.
Brunay v. Mayfield, 111, 436.
Bryan v. McCaig, 43.
Buckeye Co. V. Carlson, 246, 273.
Buckley v. Fox, 283.
v. Port Henry Co. 323.
Bullion Co. v. Croesus Co. (2 Nev.
168), 151, 177.
T. Eureka Co. (5 Utah,
151), 150, 333.
Bullis v. Noyes, 268.
Bunker Hill Co. v. Empire St. Co.
47, 168, 451.
Burdge T. Underwood (6 Cal. >{5),
219.
Burke v. Bunker Hill Co. 440.
v. McDonald, 21, 29, 32,
152, 314, 442, 446.
Burkhard v. Mitchell, 268.
Burnham v. Freeman, 183.
Bush v. Sullivan (3 G. Greene,
3',^, 269.
Buskirk v. King, 330.
Butler v. Rockwell, 256.
Butte & Boston Co. in re, 424.
Butte Co. v. Frank, 14, 235.
v. Montana Co. 187.
v. Sloan, 204, 206.
v. Societe, 153, 171.
v. Vaughn (11 Cal. 1^3),
181.
Byard v. Holmes (33 N. J. L. 119),
256.
Byrne v. Crafts, 184.
Cahoon v. Bayaud, 273.
Caldwell v. Fulton (31 Pa. St.
J,75), 218.
Caley v. Portland, 265.
Calhoun Co. v. Ajax Co. 132, 133,
141, 231.
Cambers v. Lowry, 499.
Cameron v. Seaman (69 N. Y. S96) ,
402.
Campbell v. Ellett, 46, 226.
v. Rankin (99 U. S. 261),
82.
v. Silver Bow Co., 189.
Capner v. Flemington Co. (3 N. J.
Eq. //67), 326.
Cardelli v. Comstock Co. 184.
Carney v. Arizona Co. 106.
Carr, in re, 337.
Carson v. Hayes, 209.
Carson City Co. v. N. Star Co.
58, 133, 134, 152, 161, 162,
165, 176.
Casey v. Thieviege, 204.
Gates v. Producers Co. 135.
TABLE OF CASES CITED.
481
Catron v. Old, 162.
Chadbourne v. Davis (9 Colo. 581),
87.
Chamberlin v. Collinson (45 Iowa,
429), 322.
Chambers v. Brown, 322.
v. Harrington, 94.
v. Jones, 133.
Champion Co. v. Cons. Wyoming
Co. (75 Cal. 78), 142, 439.
Chapman v. Toy Long (/, Saicy.
28), 106, 328.
Chappius v. Blankman, 239.
Charter Oak Co. v. Stephens, 236,
339.
Chatham Co. v. Moffatt (147 Mass.
403), 256.
Cheesman v. Hart (42 Fed. 98),
138, 165, 318.
v. Shreeve (37 Fed. 36), 37,
42, 113, 121, 122, 153, 155, 170,
318, 320.
Cherokee Co. v. Britton, 323.
Cherry Val. Co. v. Florence Co.
306.
Childers v. Neely, 236.
Chung Kee v. Davidson, 236.
Clare v. Peo, 311.
Clark v. Barnard, 340.
v. Fitzgerald, 162.
Clarno v. Grayson, 263.
Clary v. Hazlitt, 134, 203.
Clavering v. Clavering (2 P. Wms.
388), 326.
Clear Water Co. v. San Garde, 75.
Cleary v. Skiffich, 214.
Cleopatra Co. v. Dickinson, 322.
Clifton Co. v. Dye, 209.
Clipper Co. v. Eli Co. 205, 207.
Coal Creek Co. v. Moses (15 Lea.
Tenn. 300), 320.
Cochrane v. Justice Co. 267.
Coffee v. Emigh, 142, 280.
Cole v. Cady, 334.
Cole Co. v. Virginia Co. (/ »S'rnr//.
680), 334.
Coleman v. Curtis, 96, 103.
v. Davis, 87.
Colman v. Clements (23 Cal. 2>,r>).
9, 102.
Colo. Cent. Co. v. Turck, 163. 16.",.
320.
Colo. C. & I. Co. v. U. S. 221.
Colo. F. Co. v. Pryor, 265, 322.
16
Colo. I. W'ks. v. S. Grande Co.
303.
v. Taylor, 241.
Colo. Midland Ry. v. O'Brien, 324.
Columbus Co. v. Tucker, 209.
Comstock, in re, 303.
Cone v. Roxana Co. 231.
Conlin v. Kelley, 193.
Conrad v. Saginaw Co. 266.
Cons. Coal Co. v. Baker, 235.
— v. Peers, 269.
Cons. Rep. Co. v. Lebanon Co. (9
Colo. 343), 19, 26.
Cons. Wyoming Co. v. Champion
Co. 143, 152, 162, 170.
Conway v. Hart, 120.
Cooper v. Roberts, 221.
Cooper Co. v. Ferguson, 303.
Coosaw Co. v. Carolina Co. 334.
— v. Farmers Co. 334.
Copper Globe Co. v. Allmann, 42,
75, 80, 82.
Corning T. Co. v. Pell ( '/ Colo.
507), 226.
Cosmopolitan Co. v. Foote, 166.
Cosmos Co. v. Gray Eagle Co. 317.
Courchaine v. Bullion Co. ( J iYcr.
369), 83.
Cox v. Clough, 340.
— v. Prentice, 342.
Craig v. Thompson, 53, 79, 88.
12**
Crane v. Salmon, 277.
Crane's Gulch Co. v. Scherrer.
203.
Craw v. Wilson. 272.
Crawford v. Bellevue Co. 268.
Credo Co. v. Highland Co. 74.
Creede Co. v. Uinta Co. 231.
Crescent Co. v. Silver King Co.
330.
Croesus Co. v. Colorado Co. 55.
Cronin v. Bear Creek Co. 315. 44:5.
Crown Point Co. v. Buck, 58, 101.
v. Crismon, 48, 102.
Cullacott v. Cash Co. (8 Colo.
179), 56.
Dahl v. Raunheim (132 I . N. jinn).
205,. 206.
Darger v. Le Sieur, 74.
Dark v. Johnston (55 Pa. St. /<>'i),
270.
Davis v. Gale (32 Cal. 26), 181.
- v. Graham, 325.
482
TABLE OP CASES CITED.
v. Weibbold, 134, 220, 224.
Debris Cases, 211.
Deeney v. Mineral Co. 36, 46, 113,
123, 443, 448.
Deffeback v. Hawke, 134, 223.
De Graffenried v. Savage, 270.
Delaney Case, in re, 193.
Del Monte Co. v. Last Chance Co.
47, 58, 138, 162.
v. New York Co. 162, 165.
De Noon v. Morrison (83 Cal. 163),
94.
Depuy v. Williams (26 Cal. 310),
86.
Derry v. Ross (5 Colo. 295), 85.
Dibble v. Castle Chief Co. 102.
Dillon v. Bayliss, 76.
Dodge v. Marden (7 Or eg. 456),
183.
Doe v. Sanger, 161, 165.
v. Tyley, 77.
v. Waterloo Co. 36, 47, 48,
57-, 124, 146, 154, 164, 170, 255,
284, 442, 446.
v. Wood (2 Barn. & Aid.
724), 269.
Doherty v. Morris, 86, 93, 116.
Donahue v. Johnson, 334.
Donnelly v. Booth Co. 323.
Dorr v. Hammond, 87.
Doster v. Friedensville Co. 190.
Dougherty v. Chesnutt, 320.
v. Creary (30 Cal. 290), 87,
266.
Dower v. Richards, 224.
Drake v. Lady Ensley Co. 209.
Driscoll v. Dunwoody, 325.
Drummond v. Long (9 Colo. 538),
53.
Ducie v. Ford, 451.
Duffield v. Rosenzweig, 321.
Dugdale v. Robertson (3 Kay A
J. 695), 337.
Duggan v. Davey, 159, 164, 170.
Duncan v. Fulton, 120, 121.
Dundas v. Muhlenberg (35 Pa. St.
351), 321. -
Dunham v. Kirkpntrick, 193.
- v. Seiberling, 326.
Dunlap v. Pattison, 57.
DuPont v. Tilden, 287, 301.
Du Prat v. James (65 Cal. 555),
79, 94, 101.
Durant Case (29 Fed. 354), 374.
Durant v. Comegys, 252.
- v. Corbin, 195.
Durant Co. v. Percy Co. 320.
Durgan v. Redding, 442.
Duryea v. Boucher, 54.
v. Burt (28 Cal. 569), 236.
Dyke v. Caldwell, 182.
v. Nat. Tr. Co. 320.
v. Whyte, 235, 318.
Eagle-Badger Case, 42.
Earnan v. Bashford, 241.
Eaton v. Norris, 83.
Eberle v. Carmichael, 95.
Eberville v. Leadville Co. 339.
Eclipse Co. v. Spring, 144, 146.
Edwards v. Allouez M. Co. (SS
Mich. 46), 210.
Ege v. Kille (84 Pa. St. 333), 320.
Eilers v. Boatman (3 Utah, 159),
79.
Elder v. Horseshoe Co. 109, 111.
Electro-Magnetic Co. v. Van An
ken, 44.
Ellet v. Campbell, 46, 229.
Emerson y. McWhirter, 10, 101.
Emma Mine Case (2 Legal Ga
zette, 81), 327.
Empire Co. v. Bonanza Co. 320.
v. Bunker Hill Co. 130,
. 132, 133, 138, 150.
v. Tombstone Co. 168.
English v. Johnson (17 Cal. 107),
26, 83.
Ennor v. Barwell (1 DeG., F. d J.
529), 337.
Enterprise Co. v. Rico-Aspen Co.
226, 227, 231, 232.
Equator Co. v. Guanella, 268.
- v. Marshall Co. 188.
Erhardt v. Boaro (2 McCrary,
141; 113 U. S. 527, 537), 29, 30,
36, 48, 82, 101, 227, 316, 319,
328, 333.
Ernest v. Vivian (33 L. J. Ch.
513), 328.
Erwin v. Perego, 32, 121.
Erwin's App. (12 Atl. 149), 189,
190, 210.
Eureka Co. v. Bass, 324.
— v. Richmond Co. (4 Sawy.
302), 130, 151, 153, 160.
Fairplay Co. v. Weston, 184.
Farmington Co. v. Rhymney Co.
74.
TABLE OF CASES CITED.
483
Faxon v. Barnard (2 McGrary, 44),
79, 81, 316.
Felton v. West Co. 302.
Ferris v. Coover, 85.
Field v. Beaumont (1 Swanst.
204), 327.
v. Grey, 316.
Finerty v. Fritz (5 Colo. 174), 250.
Fissure Co. v. Old Susan Co. 74,
76, 95, 231, 232.
Fitzgerald v. Clark, 153.
Fitzpatrick v. Montgomery, 208.
Flagstaff Co. v. Tarbet (98 U. 8.
463), 147, 161, 167, 173.
Flavin v. Mattingly, 76.
Fleming v. Daly, 43.
Flick v. Hahn's Peak Co. 186.
Foote v. National Co. (2 Mont.
402), 43.
Forbes v. Gracey (94 U. S. 762),
11, 234.
Foster v. Lumbermans Co. 190.
v. Weaver (118 Pa. St. 42 ),
320.
420 Mining Co. v. Bullion Co.
(9 Nev. 840; 3 Sawy. 634), 838,
339.
Fox v. Hale Co. 306, 343.
v. Mackay, 307.
Freezer v. Sweeney, 201.
Fremont v. Seals (18 Gal. 433), 285.
v. IT. S. 285.
French v. Lancaster, 305.
Frisholm v. Fitzgerald, 123.
Fritts v. Palmer, 304.
Fuhr v. Dean (26 Mo. 116), 269.
Fuller v. Harris, 9, 117.
v. Swan River Co. (12 Colo.
12), 209, 329.
G. V. B. Co. v. Bank, 288, 301.
Gale v. Best, 133, 220.
Gamer v. Glenn, 73, 76.
Gartteld Co. v. Hammer, 79.
Garrard v. S. P. Mines, 133.
Garthe v. Hart (73 Gal. 541), 112.
Gaylord v. Place, 202.
Gelcich v. Moriarity (53 Gal. 217),
Gel wicks v. Todd, 183.
Genet v. Delaware Co. 189.
Ghost v. Shuman, 322.
Gibben v. Atkinson (31 N W. 570),
268.
Gibson v. Chouteau, 123.
Giffln v. Pipe Lines, 310.
Gildersleeve v. New Mex. Co. 286.
Gill v. Weston, 193.
Gillis v. Downey, 92.
Gilpin v. Sierra Nevada Co., 159.
Gilpin M. Co. v. Drake, 47, 53,
322.
Ginocchio v. Amador Co. 183.
Girard v. Carson, 40, 318.
Gird v. California Co. 38, 69, 76,
94, 192, 195.
Glacier Mt. Co. v. Willis, 245,
338.
Glasgow v. Chartiers Co. 87, 265.
Glass v. Basin Co. 54.
Gleeson v. Martin White Co. (IS
Nev. U&), 8, 147, 314.
Gohres v. Illinois Co. 21, 46, 195.
Golden Fleece Co. v. Cable Co. (12
Nev. 312), 8, 147, 314.
R. Co. v. Buxton Co. 321.
Terra Co. v. Mahler, 32,
39.
Gold Hill Co. v. Ish (5 Oreg.
104), 221.
Gonu v. Russell (3 Mont. 358),
26, 47, 99.
Goodwin v. Colorado Co. 303.
Gordon v. Darnell (5 Golo. 302),
250.
Gore v. McBrayer (18 Gal. 583),
9, 29, 57.
Gorman Co. v. Alexander, 282.
Gray v. Truby, 44.
Gray Copper Lode, 124.
Great West Co. v. Woodmas Co.
257.
Greer v. Heiser, 181.
Gregory v. Pershbaker (73 Gal.
109), 80, 192.
Grey v. Northumberland (13 Ves.
Jr. 235), 327.
Griffin v. Hurley, 240.
Guild Co. v. Mason, 307.
Gwillim v. Donnellan (115 U. 8.
45), 13, 40, 124.
Hadley Co. v. Cummings, 241.
Hall v. Arnott, 123.
v. Duke of Norfolk, 340.
v. Hale, 93.
v. Johnson (S Hurl, d G.
589), 323.
v. Kearny, 95, 102.
Hallack v. Traber, 118.
484
TABLE OF CASES CITED.
Hamburg Co. v. Stephenson, 214,
216.
Hamilton v. Ely, 327.
v. S. Nevada Co. (33 Fed.
562), 339.
Hammer v. Garfield Co. (130 U. 8.
291), 73, 74, 283.
Hammon v. Nix, 235.
Hancock v. Keene, 325.
Hannan v. Seidentopf, 244.
Hanson v. Fletcher, 21, 55, 74.
Hardin Lode Case. (See Pollard v.
Shivelv.)
Harkness v. Burton (39 Iowa, 101),
86.
Harlan v. Harlan, 310.
Harrington v. Chambers, 33, 35,
153, 447.
Harris v. Equator Co. (8 Fed. 863),
13, 317, 318, 339.
v. Kellogg, 102, 104, 283.
Hartford Co. v. Cambria Co. 321.
Hartman v. Smith, 214, 216.
Harvey v. Ryan (1,2 Cal. 626), 10.
Hauswirth v. Butcher, 21, 46.
Haws v. Victoria Co. 70, 82, 315.
Hawxhurst v. Lander (£8 Cal. 331),
82.
Hayden v. Brown, 74.
Hayes v. Lavagnino, 31, 154, 155.
Haynes v. Briscoe, 108.
Healey v. Rupp, 33, 34, 343.
Heaney v. Butte Co. 329.
Hecla Co. v. O'Neill, 301.
Hector Co. v. Valley View Co. 88.
Hendrie Co. v. Holy Cross Co. 241.
Hermocilla v. Hubbell, 222.
Herriman Co. v. Butterfield Co.
340.
Herron v. Eagle Co. 14.
Hersey v. Tulley, 301.
Hess v. Winder (30 Cal. 3$), 19,
26, 317, 328.
Heydenfeldt v. Daney Co. (93 U.
8. 634), 131, 222.
Hicks v. Bell, 12.
Higgins v. California Co. 301.
Hill v. King (8 Cal. 337), 209.
Hindson v. Markle Co. 209.
Hines v. Miller, 241.
Hirschler v. McKendricks, 100,
Hobart v. Ford (6 Nev. 77), 186.
Hoffman v. Beecher, 434.
Holbrooke v. Harrington, 307.
ITonaker v. Martin, 94, 99. H4.
Iloosac Co. v. Donat, 266.
Homer v. Watson (79 Pa. St. 2^2),
218.
Horsky v. Helena Co. 334.
v. Moran. 224.
Horst v. Shea, 339.
Horswell v. Ruiz (67 Cal. Ill),
79, 160.
Hosford v. Metcalf, 86.
Howe's Co. v. Howe's Ass. 337.
Howeth v. Sullenger, 51, 124.
Hugunin v. McCunniff (2 Colo.
367), 322.
Hukill v. Myers, 267.
Hulst v. Doerstler, 117.
Humphreys v. Mooney (5 Colo.
282), 305.
Hunt v. Eureka Gulch Co. 315.
v. Patchin, 114, 439.
Hutchinson v. Kline, 218.
Hyman v. Wheeler (29 Fed. 5)7).
154, 155.
Iba V. Cent. Assn. 446.
Idaho Co. v. Union Co. 252.
v. Winchell, 241.
Ingram v. Golden Co. 267.
Integral Co. v. Altoona Co. 87.
318.
Iron Silver Co. v. Campbell (135
U. 8. 286), 131, 170, 206, 207.
424.
v. Cheesman, 155, 172.
v. Elgin Co. (118 U. 8.
196), 48, 58, 160, 161, 173, 177.
v. Mike and Starr Co. 154,
160, 204, 205.
Irwin v. Davidson (3 Ircd. Eq.
311), 326, 327.
v. Strait, 184.
Ivanhoe Co. v. Keystone Co. (102
U. 8. 167), 222.
Jackson v. Dines, 283.
v. Roby, 94, 106, 314, 449.
Jacob v. Day, 187.
v. Lorenz, 181, 183.
James v. Emmet Co. 323.
Jamestown Co. v. Egbert, 273.
Jantzen v. Arizona Co. 283.
Jeffords v. Hine (11 Pac. 351), 136.
Jennings v. Beale, 330.
v. Rickard (JO Colo. -W-Ti.
272.
TABLE OF CASES CITED.
485
Jennison v. Kirk (98 U. 8. .',53),
180, 185.
Job v. Potton, 270.
Johnson v. Buell (4 Colo. 557), 147.
v. Mnnday, 442.
v. Sage, 301.
- v. Young, 86, 115.
Johnstone v. Robinson (3 McCrary,
42), 270.
Johnstown 'Co. v. Butte Co. 330.
v. Cambria Co. (32 Pa. St.
* 2J{1), 260.
Jones v. Jackson (9 Cal. 231),
210.
v. Prospect Co. 44, 152,
163.
Jordan v. Duke, 82, 100, 317.
— v. Schuerman, 123.
Joseph v. Davenport, 266.
Jupiter Co. v. Bodie Co. (11 Fed.
666), 31, 32. 53, 94, 173.
Jurgenson v. Diller. 241.
Justice Co. v. Lee, 281.
Kahn v. Old Telegraph M. Co. (2
Utah, 17 Jf), 133.
Kannaugh v. Quartette Co. 128.
Keeler v. Green (21 X. J. Eq. 27).
269.
v. Trueman, 13.
Kelly v. Fourth Co. 287.
Kendall v. San Juan Co. 305.
Kevern v. Prov. Co. 324.
King v. Amy Silver Smith Co.
162, 163.
v. Edwards (1 Mont. 235),
99.
v. Thomas, 223, 339.
Kinney v. Fleming, 54, 87.
Kirk v. Meldrum, 83, 197, 198.
449.
Klein v. Davis, 327, 328.
Klopenstine v. Hays, 94, 97.
Knox v. Higby, 235.
Koons v. Bryson, 317.
Kramer v. Settle (1 Ida. ',85), 94.
101.
Lacey v. Woodward, 96.
Lacustrine Co. v. Lake Guano Co.
189.
Lakin v. Dolly, 133.
v. Roberts, 133.
v. Sierra Buttes Co. 96.
Lalande v. McDonald, 79.
Lamar Co. v. Amity Co. 186.
Lampman v. Milks, 184.
Largey v. Bartlett, 256.
Larkin v. Upton, 39, 150.
Lamed v. Jenkins. 148, 223.
Last Chance Co. v. Bunker Hill
Co. 181.
v. Tyler Co. 126, 143. 162.
165, 167, 451.
Laughlin v. Hawley, 279.
Law v. Grant, 465, 496.
Lawrence v. Gayetty, 256.
v. Robinson (4 Colo. 567 1 ,
272.
Leadville Co. v. Fitzgerald, 152,
155, 164, 170.
Lebanon Co. v. Cons. Republican
Co. 247.
v. Rogers, 148, 340.
Ledoux v. Forester, 21.
Lee v. Stahl (13 Colo. 17J,), 141,
143, 146.
Leggatt v. Stewart (5 Monl. J07'\.
Lehigh Co. v. Bamford, 256.
v. New Jersey Co. 310.
v. Trotter, 307, 334, 342.
Lendberg v. Brotherton Co. 324.
Lewey v. Frick Co. 340.
Lewis v. Marsh (8 Hare. 97), 337.
Lime Lode Case, 174.
Lincoln v. Rodgers (1 Mont. 217),
208, 210.
Lindemann v. Belden Co. 239.
Lindsley v. Union Co. 330.
Little Gunnell Co. v. Kimber, 45.
94, 96, 99, 113.
Josephine Co. v. Fullerton.
143.
Pittsburgh Co. v. Amie Co.
39, 40.
v. Little Chief Co. (11
Colo. 223), 320.
Schuylkill Co. v. Richards
(57 Pa. St. Vf2), 189.
Lockhart v. Johnson, 80, 82.
v. Rollins (21 Pac. £13), 93,
96, 112, 117.
v. Wills, 58, 81, 286.
Lockwood v. Lunsford (56 Mo.
68), 327, 328.
Locust Co. v. Gorrell, 178.
Lohmann v. Helmer, 283.
Lone Jack Co. v. Megginson. 282.
486
TABLE OF CASES CITED.
Lonsdale v. Curwen (3 Bligh 0. 8.
168), 337.
Lord v. Pueblo Co. 325.
Lorimer v. Lewis (1 Morris (la.)
253), 126.
Lowry v. Silver City Co. 117, 121.
Maeris v. Bicknell (7 Gal. 262),
181, 184.
Magnet Co. v. Page (9 Nev. 346),
328.
Maher v. Shull, 241.
Maine & Phoenix Case, 41.
Mallett v. Uncle Sam Co. (1 Nev.
188), 13, 85, 86.
Malone v. Big Flat Co. 239.
Maloney v. King, 170, 330, 333.
v. Love, 267.
Mammoth Co.'s App. (54 Pa. St.
183), 327.
Manning v. Strehlow, 442, 447.
Manuel v. Wulff, 281.
Marburg Lode, 451.
Marshall v. Harney Peak Co. 35,
82, 85.
Marshall Co. v. Kirtley, 315.
Martinez v. Earnshaw, 307.
Marvin v. Brewster Co. (55 N. Y.
598), 218.
Mason v. Sieglitz, 252.
Massot v. Moses (3 8. C. 168),
172, 269.
Mather v. Trinity Church (3 8. &
R. 509), 310.
Mattingly v. Lewisohn, 77, 95,
102, 315.
Meagher v. Reed, 266.
Mellors v. Shaw (1 Best & 8. 437),
324.
Merced Co. v. Fremont (7 Gal.
317), 327, 328.
Mercnr Co. v. Spry, 235.
Merritt v. Judd (14 Gal. 59), 13.
Metcalf v. Prescott (10 Mont. 283);
76, 77.
Meylette v. Brennan, 272.
Michael v. Mills, 40.
Mickle v. Douglass, 266.
Mike & Starr Case, 154, 160, 204,
205.
Miller v. Chester Co. 267.
v. Girard, 40.
Mills v. Fletcher, 93, 96.
v. Hart, 117.
Minah Co. v. Briscoe, 117.
Minnesota Co. v. Brasier, 340.
Miser v. O'Shea, 210.
Mitchell v. Cline, 195.
Mollie Gibson Co. v. Thatcher,
248.
Monroe v. N. Pac. Co. 322.
Montana Co. v. Boston Co. 132,
138, 247, 329.
v. Clark (^2 Fed. 626), 58,
160, 164, 329.
v. Gehring, 211.
v. Livingston, 235. •
v. St. Louis Co. 246, 317,
337.
Ry. v. Migeon, 204.
Moody v. McDonald (4 Gal. 297),
322.
Mooney v. York Co. 322.
Moore v. Ferrell (1 Ga. 7), 327,
328
— v. Robbins, 135.
v. Smaw (17 Gal. 199), 12,
220, 285.
More v. Massini (32 Gal. 590), 328.
Morenhaut v. Wilson (52 Gal. 263),
102.
Morgan v. Tillotson, 106, 114.
Morgenson v. Middlesex Co. 141.
Moritz v. Lavelle (77 Gal. 10), 272.
Morris v. DeWitt (5 Wend. 71),
325.
Morrison v. Regan, 53, 57, 75, 123.
Morton v. Solambo Co. (26 Gal.
527), 57.
Mt. Diablo Co. v. Callison (5
Sawy. 439), 93, 94, 102, 154.
Mt. Rosa Co. v. Palmer, 207.
Mt. View Co. v. McFadden, 440.
Moyle v. Bullene, 39, 123, 223.
Moynahan v. Prentiss, 322.
Mudsill Co. v. Watrous, 256, 342.
Muldoon v. Brown, 76, 448.
Muldrick v. Brown, 33, 43.
Mullan v. U. S. 135.
Murley v. Ennis (2 Colo. 300), 29,
57, 87, 270, 272.
Murphy v. Cobb (5 Colo. 281), 312.
Murray v. Polglase, 92.
Murray Hill Co. v. Havener, 104,
o-j o
Muskett v. Hill, 270.
Myers v. Hudson Co. 323.
v. Spooner (55 Gal. 257),
85.
McAndrews v. Burns, 323.
TABLE OF CASES CITED.
487
McCahan v. Wharton (121 Pa. 424),
265.
McCann v. McMillan, 75, 84, 86.
McCarthy v. Speed, 76, 116, 207,
225.
McCord v. Oakland Q. Co. 107.
McCormick v. Baldwin, 99.
v. Varnes (2 Utah, 855),
173.
McCowan v. McLay, 77, 339.
McDonald v. Montana Co. 195.
McEvoy v. Hyman (25 Fed. 539,
596), 56, 122, 448.
McFadden v. Mt. View Co. 306,
442.
McFeters v. Pierson, 13.
McGarrity v. Byington (12 Gal.
426), 94.
McGinnis v. Egbert (8 Colo. 41),
32, 40, 42, 48, 81, 86, 93, 104,
105, 122, 314, 447, 448.
McGoon v. Ankeny (11 III. 558),
87.
Mclntyre v. Ajax Co. 307.
v. Mclntyre Co. 265.
McKay v. McDougall, 99.
McKee v. Brooks, 269.
McKenzie v. Poor Man Mines, 301.
McKinley v. Wheeler, 57.
McKinley Co. v. Alaska Co. 198,
281.
McKinstry v. Clark, 44, 79.
McLaren v. Byrnes, 239.
McLaughlin v. Del Re, 189, 211.
v. Thompson, 87, 273.
McLure v. Sherman, 329.
McNeil v. Pace, 114.
McShane v. Kenkle, £3.
National Co. v. Weston, 310.
Neilson v. Champaigne, 92.
Neuebaumer v. Woodman, 83.
Neuman v. Dreifurst, 107.
Nevada Co. v. Home Co. 31, 32,
83, 105, 194.
v. Miller, 194.
Newark Co. v. Upson, 333.
New Dunderberg Co. v. Old, 320.
Newman v. Barnes, 449.
v. Newton, 446.
New Mercer Co. v. Armstrong,
183.
New York Co. v. Rogers, 323.
Nichols v. Mclntosh, 86, 87.
Niles v. Kennan, 86, 318.
No Mistake Lode, 438.
Noonan v. Caledonia Co. 305.
North Am. Co. y. Adams, 87, 183.
Northmore v. Simmons, 7, 85, 93.
North Noonday Co. v. Orient Co.
(1 Fed. 522, 11 Id. 125), 30, 32,
33, 79, 152, 282, 317.
Noteware v. Stearns (1 Hont.
311), 185.
Noyes v. Black, 79.
v. Mantle, 204, 205, 208.
No. 5 Co. v. Bruce (4 Colo. 293),
273.
O'Donnell v. Glenn, 34, 43, 76.
O'Keefe v. Cannon, 203, 204.
O'Keiffe v. Cunningham (9 Cal.
589), 210, 211.
Old Tel. M. Co. v. Central Co.
(1 Utah, 331), 327.
Olive Co. v. Olmstead, 194.
Omaha Co. v. Tabor (13 Colo. 41),
270, 309, 321.
Omar v. Soper (11 Colo. 380), 80,
124, 141.
Oolagah Co. v. McCaleb, 306.
Ophir Co. v. Carpenter (4 Nev.
534), 184.
Oppenlander v. Left Hand Co. 181,
185.
Oreamuno v. Uncle Sam Co. (1
Nev. 215), 85.
Oregon Co. v. Trullenger (3 Oreg.
1), 184.
O'Reilly v. Campbell, 101, 283.
Original Co. v. Winthrop Co. 7, 85.
Ormond v. Granite Mt. Co. 338,
343.
Ormsby v. Budd, 256.
Oscamp v. Crystal R. Co. 100.
Osgood v. Bauder, 322.
Osterman v. Baldwin, 282.
Otaheite Co. v. Dean, 211, 329.
Overman Co. v. Corcoran (15 Nev.
417), 30.
Oviatt v. Big Four Co. 184.
Pacific Co. v. Spargo (16 Fed. 348),
165.
Packer v. Heaton (9 Cal. 569), 94.
Page v. Fowler, 310.
v. Summers (70 Cal. 121),
273.
Palmer v. Uncas Co. 239.
Pantzar v. Tilly Co. 323.
TABLE OF CASES CITED.
Pardee v. Murray ('/ Mont. 23-',},
141, 145.
Parker v. Furlong, 327.
Parley's Park Co. v. Kerr, 9. 22.
Parrot Co. v. Heinze, 162. 304,
328.
Parrott v. Palmer. 327.
Patchen v. Keeley, 321.
Patrick v. Colorado Co. 307.
Patterson v. Hewitt, 327.
v. Hitchcock (3 Colo. 533),
25. 20. 3G, 80, 129. 147, 149,
274.
v. Tarbell, 56.
Paul v. Cragnas, 266.
Paull v. Halferty (63 Pa. St. J,6) ,
501.
Peabody Co. v. Gold Hill Co. 25,
134. 135, 338.
Pelican Co. v. Snodgrass, 99, 112.
Penn v. Oldhauber, 95.
Pennsylvania Co. v. Bales, 315.
People v. De France, 337.
- v. District Court, 188.
- v. Page, 310.
v. Sloper, 310.
v. Williams (35 Cal. <;r/».
311.
Perego v. Dodge. 442.
Perry v. Ricketts (55 III. 234), 323.
Petroleum Co. v. Coal Co. 273.
Pfeiffer v. University, 187.
Pharis v. Muldoon (75 Cal. 28.'f ) ,
98.
Phenix Co. v. Lawrence (55 Cal.
143), 78.
Philadelphia Co. v. Taylor, 178.
Philpotts v. Blasdel (8 Nev. 61),
247.
Phipps v. Hully (18 Xet'. 133). 342.
Phrenix Co. v. Scott, 14.
Pike's Peak Lode, 224, 424.
Pittsburg Co. v. Glick, 343.
v. Greenlee, 267.
v. Spooner, 301.
Plummer v. Hillside Co. 218, 267.
Pollard v. Shively (5 Colo. 309),
52, 55, 56.
Porter v. Noyes, 87.
Portland Co. v. Flaherty, 323.
Poujade v. Ryan, 38, 70.
Power v. Klein, 329.
Presidio Co. v. Bullis, 252.
Preston v. Hunter, 75, 81.
Prosser v. Parks (18 Cal. 47), 9.
Protector Lode, 224.
Providence Co. v. Burke. 75, 112.
282, 283, 442.
- v. Marks, 315, 440.
Puget Co. in re, 342.
Purdiim v. Ladin, 75.
Quigley v. Gillett. 102. 449.
Quimby v. Boyd. 53. 77, 95, 446.
Qiiincy Co. v. Hood (77 111. «tfi,
323.
Quinlan v. Noble, 180.
Quirk v. Falk (47 Cal. .J5.J). 183.
Rader v. Allen, 136.
Raisbeck v. Anthony, 151, 153.
Rankin's App. 329.
Kara Avis Co. v. Bouscher, 239.
Raunheim v. Dahl, 128, 206.
Raymond v. Johnson, 272.
Real del Monte Co. v. Pond Co.
(23 Cal. 82), 327.
Reese v. Bald Mt. Co. 241.
v. Morgan Co. 323.
Regan v. Whittaker. 224.
Rernmington v. Bandit, 94.
Renshaw v. Switzer. 102.
Reynolds v. Iron S. Co. (116 U. fa.
687), 203. 318.
v. Pascoe, 39, 44.
Riborado v. Quang Pang Co. 9.
Rice v. Ege (42 Fed. 661), 252.
Richard v. Wolfing, 40.
Richards v. Dower, 230.
Richmond Co. v. Eureka Co. 173.
v. Rose. 21, 448.
Riddle v. Mellon, 268.
Rillston v. Mather, 324.
Risen v. Wiseman. 82. 340.
Riste v. Morton, 54, 111.
Robinson v. Imperial Co. (5 AVr.
44), 214.
— Co. v. Johnson. 301.
Rockwell v. Graham (9 Colo. 36).
187, 439.
Rogers v. Cooney (7 Ner. 213), 189,
211.
v. Ley den. 325.
Rorer Co. v. Trout. 256, 265.
Rose v. Richmond Co. 134. 314,
449.
Rosenthal v. Ives (12 Pac. 904),
314, 449.
Roseville Co. v. Iowa Gulch Co.
(15 Colo. 29), 14.
TABLE OF CASES CITED.
Rough v. Simmons (65 Cal. 227),
445.
Roxanna Co. v. Cone, 143, 157.
Royal K. Placer, 194.
Royston v. Miller, 94, 105, 116.
Rozecrans Co. v. Morey. 302.
Ruby Co. v. Prentice, 302.
Rush v. French, 57, 79.
Russell v. Brosseau, 99.
v. Chumasero (4 Mont.
309), 76.
St. Clair v. Cash Co. 320.
St. John v. Kidd (26 Cal. 26.'t), 9.
St. Louis Co. v. Kemp (10% U. S.
636). 93, 94, 133, 143, 165, 425.
- v. Montana Co. 150, 166,
231, 327, 328, 329, 337, 451.
Salmon v. Symonds, 221.
Sampson Co. v. Schaad, 323. .
Sanders v. Noble, 38.
Sands v. Cruikshank, 30.
Saunders v. La Purisima Co. 222.
v. Mackey, 116.
Scheel v. Alhambra Co. 190.
Schultz v. Keeler, 57.
Schwab v. Beam, 180.
Searle Placer, 194.
Sears v. Taylor (4 Colo. 38), 9,
83, 314.
Seidler v. La Fave, 54.
v. Maxfield, 76.
Settle v. Winters, 252.
Severson v. Bimetallic Co. 302.
Seymour v. Fisher, 120, 125, 128,
234, 317.
Shattuck v. Costello, 54, 112.
Shaw v. Homer, 266.
v. Kellogg, 285.
Sheaffer's App. 333.
Shepard v. Murphy, 70.
Sherlock v. Leighton, 95, 102, 283.
Shively v. Bowlby. 455.
Shoshone Co. v. Rutter, 125, 153,
154, 247, 440, 442.
Shreve v. Copper Bell Co. 33, 152,
247.
Sieber v. Frink, 87.
Sierra Co. v. Sears (10 Nev. 3J,6),
327.
Silent Friend Co. v. Abbott, 306.
Silver Co. v. N. C. Sm. Co. 343.
Silver Bow Co. v. Clarke, 128, 131,
134.
Silver City Co. v. Lowry, 121,
268, 448":
Silver Cord Co. v. McDonald (/'/
Colo. t91), 323.
Sisson v. Somers, 7, 41.
Slavonian Co. v. Perasich (7 Fed.
331), 96.
Smallhouse v. Kentucky Co. (2
Mont. 443), 239.
Smart v. Jones, 189.
Smelting Co. v. Kemp. (See St.
Louis Co. v. Kemp.}
Smith v. Belshaw, 324.
v. Bolles (132 U. 8. 125),
256, 322.
v. Hill, 224.
v. Idaho Q. Co. 310.
v. Jamison, 328.
v. Newell, 54, 55, 56, 75.
v. O'Hara (43 Cal. 371),
183.
v. Oxford Co. (42 N. J. L.
467), 324.
v. Reynolds (8 Fed. 696),
250.
v. Sherman Co. 245.
Smoke House Lode Case, 131, 223.
Socorro Co. v. Preston, 288.
Souter v. Maguire, 70.
South End Co. v. Tinney, 92, 115,
317, 339, 340.
South Star Lode, 205, 224, 424.
South West Co. v. Smith, 323.
South Yuba Co. v. Rosa, 180.
Soyer v. Gt. Falls Co. 323.
Sparrow v. Strong (3 Wall. 97),
11, 29.
Spotts v. Gilchrist, 329.
Sprague v. Locke, 334.
Stahl v. Van Vleck, 332.
Standley v. Roberts, 268.
Stanford v. Felt, 184.
Stanley v. Mineral Union, 222.
State v. Berryman (s Nev. 262),
311.
rr v. Burt (64 N. C. 619), 311.
v. District Court, 164, 337.
Stearns.Roger Co. v. Brown, 333.
Steel v. Gold Co. (18 Nev. W), 102,
429.
Stemwinder Co. v. Emma Co. 21.
Stephenson v. Wilson (37 Wis.
482), 339.
Sterrett v. Northport Co. 340.
Stevens v. Gill, 152.
490
TABLE OF CASES CITED.
v. Williams, 151, 155, 327.
Steves v. Carson (42 Fed. 821),
315, 448.
Stewart v. Stevens, 185.
Stinchfleld v. Gillis, 142, 152, 173,
246, 247.
Stinson v. Hardy, 269.
Stockbridge Co. v. Cone Works
(102 Mass. 80), 321, 337.
Stone Lode Case. (See Iron Sil-
ver Co. v. Elgin Co.)
Stonewall Co. v. Peyton, 56.
Stoughton v. Leigh (1 Taunt. 402),
249.
Strahlendorf v. Rosenthal (30
Wis. 677,), 323.
Strasburger v. Beecher, 102.
Strepey v. Stark, 37, 122, 318,
447.
Strickler v. Colo Springs, 181.
Strickley v. Hill, 283, 444.
Stuart v. Com. 235.
Suessenbach v. Bank, 117.
Suffolk Co. v. San Miguel Co. 211.
Sullivan v. Iron Silver Co. 207.
Summerlin v. Fronteriza Co. 301.
Sunnyside Co. v. Reitz, 320.
Sweet v. Webber, 47, 79, 106, 315.
Swigart v. Walker, 92.
Table Mountain Co. v. Stranahan
(20 Cal. 5$), 9.
Tabor v. Dexter, 151.
Talbott v. King, 131, 134.
Talmadge v. St. John, 77, 83.
Tartar v. Spring Creek Co. (5 Cal.
395), 216.
Taylor v. Middleton (67 Cal. 656),
76, 85.
v. Parenteau, 24, 55.
v. Thomas, 267.
Tennessee Co. v. Ayers, 302.
— v. Hamilton, 209.
Terrible Co. v. Argentine Co. 34.
Territory v. McKey, 312.
Thallmann v. Thomas, 83, 118,
135.
Thistle v. Frostberg Co. 317.
Thomas v. Chisholm, 57.
v. Oakley (18 Ves. 184),
328.
Thompson v. Jacobs, 89.
v-. Mattern, 218.
v. Noble, 193.
v. Spray, 57, 70, 119, 124.
Thornborough v. Savage Co. 337.
Tipping v. Bobbins, 270.
Titcomb v. Kirk (51 Cal. 288),
185, 187.
Tombstone Co. v. Way Up Co. 155,
176.
— T. S. Cases, 223.
Tornanses v. Melsing, 282.
Townsend v. Peasley (35 Wis. 383),
178.
Travis Co. v. Mills, 210.
Tredinnick v. Red Cloud Co. 238.
Trevaskis v. Peard, 86, 96.
Trihay v. Brooklyn Co. (4 Utah,
468), 323, 324.
Tripp v. Dunphy, 93.
Trotter v. Hecksher, 307, 342. .
Tuolumne Co. v. Maier, 30, 39.
Turner v. Sawyer, 108, 111, 117,
356, 436.
Tyler Co. v. Last Chance Co. 121,
167, 337.
Tynon v. Despain, 180, 185.
Uinta Co. v. Creede Co. 133, 143.
Ulmer v. Farnsworth, 178.
Union Co. v. Bank, 288.
v. Dangberg, 185.
v. Leitch, 38, 59.
Union Oil Co. in re, 193, 195.
U. P. Ry Co. v. Jarvi, 323.
United Merthyr Co. in re (L. R.
15 Eq. 46), 320.
U. S. v. Blackburn, 221.
v. Carpenter, 306.
v. Copper Queen Co. 478.
v. Gear (3 McLean, 571),
328.
v. Iron S. Co. 93, 134, 135.
v. King, 135, 392.
v. Lynde, 478.
v. Marshall Co. (129 U. S.
579), 134.
v. North Bloomfield Co.
210, 212.
v. Parrott (McAllister,
271), 327.
v. San Pedro Co. 285.
v. Smith, 8.
v. Trinidad Co. 286.
v. Winona Co. 135.
U. S. Co. v. Pacific Co. 306.
Upton v. Larkin (7 Mont. 449),
30, 39, 55, 76.
Utah Co. v. Dickert Co. 96, 117.
TABLE OF CASES CITED.
491
Utley v. Clark-Gardner Co. (4
Colo. 369), 303.
Valcalda v. Silver Peak Mines,
216.
Van Buren v. McKinley, 9, 77.
Van Esse v. Catsburg Co. 323.
Van Horn v. State, 192.
Van Zandt v. Argentine Co. (2
McCrary, 159), 33, 43, 163, 333.
Vervalen v. Older (8 N. J. Eq.
98). 236.
Vietti v. Nesbit, 307, 343.
Virginia Co. v. Kelly, 218.
Wakefield v. Sunday Lake Co. 267.
Wakeman v. Norton, 137, 171.
Walrath v. Champion Co. 58, 145,
161, 166, 173.
Walsh v. Mueller, 30, 58.
Ward v. Carp River Co. 236.
Wardell v. Watson, 218.
Warner v. Benjamin, 322.
Warnock v. De Witt, 51, 114.
Waterloo Co. v. Doe, 32, 43, 133.
Waterman v. Banks, 252.
Waters v. Stevenson (13 Nev.
157), 320.
Watervale Co. v. Leach, 141, 149.
Watson v. Mayberry, 39.
Watson Co. v. James, 256.
Weese v. Barker, 70, 79, 319.
Weibold v. Davis, 339.
Weill v. Lucerne Co. (11 Nev.
200), 247.
Welch v. Garrett, 87, 183.
Wells v. Davis, 75.
v. Leek, 273.
Welsh v. Lehigh Co. 324.
Wesling v. Kroll, 268.
Western Co. v. Berberich, 324.
West Granite Co. v. Granite Co.
77.
Westmoreland Co. v. De Witt, 267.
West Point Co. v. Reymert (45
N. Y. 70S), 328.
Wheeler v. Smith, 193.
v. Walton Co. 306.
v. West, 269.
White v. Lee, 198.
Whittaker v. Lindley, 249.
Wight v. Dubois, 128.
Wilhelm v. Silvester, 141.
Wilkins v. Abell, 240.
Willeford v. Bell, 33.
Williams v. Gibson, 218.
v. Long, 330.
v. Morrison, 269.
v. Pomeroy Co. (37 Oh. St.
583), 340.
Wills v. Blain, 112.
Willson v. Cleaveland, 87.
Wilson v. Gerhardt, 267.
v. Henry (35 Wis. 2Jtl; 40
Id. 59Jt), 339.
v. Iriumph Co. 82/94.
Wiltsee v. King, 39.
Winchester v. Davis Co. 306.
Winters v. Hub Co. 302.
Wolcott v. Johns, 255.
Wolfley v. Lebanon M. Co. (4
Colo. 112), 128, 147, 148.
Wood v. Aspen Co. 283.
Woods v. Montevallo Co. 340.
Woodside v. Ciceroni, 269, 273.
Woodward v. Mitchell, 265.
Woodworth v. McLean, 273.
Woody v. Barnard, 95.
Worthington v. Given, 307.
Wright v. Ascheim, 333.
v. Killian, 95.
Yarwood v. Johnson, 116.
Yellow Aster Co. v. Winchell, 440.
York v. Davidson, 209.
Yosemite Case, 12, 13.
Young v. Goldsteen, 439, 442.
— v. Northern Co. (9 Biss.
300), 236.
Yreka Co. v. Knight, 94, 318.
Yunker v. Nichols (1 Colo. 551),
184.
Zollars v. Evans (2 McCrary, 39),
32.
GLOSSARY.
GLOSSARY OF MINING TERMS.
ACEQUIA. A ditch. gpaniish.
ADIT. A horizontal drift or other passage used as an
opening or drain to a mine ; applied to no level except one
opening on the surface. Latin.
ADVENTURER. A shareholder.
ALLUVIUM. The sediment of streams and floods. Latin.
AMALGAM. The mechanical combination of quicksilver
with gold or silver.
ANDESITE. A dark porphyritic lava, composed of black
crystals imbedded in a mass of light colored feldspar. ANDE-
SITE BRECCIA. Fragmental andesite united into a compact
rock by silica and other natural cementing materials. The
main eruptive rock of the Cripple Creek district. ANDESITE
TUFF. Andesite in minute fragments, finer than breccia.
John Wellington Finch.
APEX. The top of a lode. Latin.
ARASTRA. A circular mill for grinding quartz by tritu-
ration between stones attached loosely to cross arms.
Spanish.
ARCH. A part of the gangue left standing for support.
ARGENTIFEROUS. Silver bearing. Latin.
ASCENSION THEORY. That referring the filling of fis-
sures to matter from below. Von Gotta, 71.
ASPHALT. A solid form of native bitumen, which
occurs more or less pure, or mixed with inorganic or other
adventitious non-bituminous matter. The name is also ap-
plied, commercially and in engineering parlance, to mate-
rials in general containing this form of native bitumen or
any form resembling it. See BITUMEN. C. O. Baxter.
ASSAY. A test of the mineral contained in a larger
mass by extracting and weighing the product of a sample.
See p. 3Jfl.
ASSESSMENT WORK. The annual labor ($100) required
to hold a claim. See p. 88.
AURIFEROUS. Gold bearing. Latin
BACK. The roof of a drift, stope or other working.
BAL. A mine. Cornish.
BANK. The surface at the pit's mouth.
BANKET. Term applied to the ore of the Rand Reefs.
GLOSSARY. 493
BANKSMAN. The man at the shaft-mouth who handles
the bucket. Cornish.
BAR DIGGINGS. Gold washing on river bars.
BARRIERS. Masses of unworked gangue or coal left to
prevent drainage from mine to mine.
BASE BULLION. Pig lead containing its gold and silver
unseparated.
BASE METALS. All metals except gold, silver, mercury
and the platinum group, which are termed noble metals.
BED. A horizontal seam or deposit of ore.
BED ROCK. The solid rock outcropping at surface or
underlying the gravel, slide or other loose earth.
BISMUTH. A brittle crystalline grayish white metal
very easily fusible ; specific gravity, 9.8 ; atomic weight.
208.5 ; symbol, Bi. Found as an oxide or sulphide in ores
of gold, silver, copper and other metals. Not usually dis-
tinguishable except by assay. As distributed with such ores,
has no commercial value unless of high percentage. Frank
M. Taylor.
BITUMEN consists of a mixture of native hydrocarbons
and their derivatives, which may be gaseous, liquid, a viscous
liquid or a solid, but. if a solid, melting more or less readily
on the application of heat, and soluble in turpentine, chloro-
form, bisulphide of carbon, similar solvents and in the
malthas or heavy nsphaltic oils. Natural gas, petroleum,
maltha, asphalt, grahamite, gilsonite, ozokerite, etc., are
bitumens. See ASPHALT. C. O. Baxter.
BLACK JACK. A dark variety of zink blende.
BLENDE. A sulphide of zink.
BLOSSOM. Decomposed out-crop of a vein. Gossan.
Iron hat.
BLOW-OUT. A spreading out-crop.
BONANZA. Pair weather at sea ; a large body of paying
ore. Became a familiar term upon the opening of the
immense ore bodies in the Comstock. Sp.
BOOM DITCH. The ditch from the dam used in boom-
ing. (2) A slight channel cut down a declivity into which
is let a sudden head of water intended to cut to bed-rock
and prospect for the apex of any underlying lode.
BOOMING. A kind of placer mining where the water
is accumulated in a dam and let out at intervals, so as to
utilize its cutting power in the form of a torrent.
BORRASCA. The reverse of Bonanza. Out of pay.
BOULDER. A large, loose, rounded stone.
BRATTIS. A bulkhead.
BREAST. The heading of a drift, tunnel, or other hori-
zontal working.
BRECCIA. A conglomerate of angular fragments.
494 GLOSSARY.
BRITTLE SILVER. Stephanite. A sulphide of antimony
and silver containing 68.5 per cent, silver with the anti-
mony variable. Sometimes contains iron, copper and
arsenic ; variable in color, hardness and specific gravity.
2?. B. Lawrence.
BROACHING. Trimming or straightening a working.
BRONZE. An alloy of copper and tin. Brass is an
alloy of copper and zink.
BUDDLING. Separating ores by washing.
BULLION. Uncoined gold or silver.
CACHE. A place where a prospector's provisions or out-
fit is buried or hidden. French.
CALAMINE. An ore of zink. Lapis Calaminaris.
CALAVERITE. A telluride of gold, containing 55.5 per
cent, tellurium and 44.5 per cent, gold ; allied to and com-
monly misdescribed as sylvanite ; sometimes distinguish-
able from the latter by a yellow color and lack of crystalliza-
tion. J. W. Finch.
CANON. A narrow valley. Termed Box Canon when the
sides are perpendicular. Spanish.
CAP. Space where the walls contract so as to leave
only a trace of the vein. A pinch. (2) A space in the
vein where the gangue becomes barren.
CARBONATES. The combination of carbonic acid with
bases. Soft carbonates have lead for a base. Hard carbon-
ates have iron for a base. An ore of lead and silver.
CEMENT. Gold-bearing gravel united and hardened into
a compact mass.
CHAFFEE WORK. A Colorado term for annual labor.
Jerome B. Chaffee was Territorial delegate when the Mining
Act of 1872 was passed.
CHEEK. The side or wall of a vein.
CHIMNEY. A pocket or ore body when found pipe shape,
with general perpendicular position.
CHLORIDES. Compounds of chlorine with other ele-
ments.
CHUTE, (or SHOOT.) A flume for sliding ore. (2) A
chimney of ore. French.
CINNABAR. Sulphide of mercury.
CLAIM. A location. The amount of ground which may
be located by a single person or association. See /x 425.
CLEAN-UP. The operation of collecting the gold which
has settled in the flume of a placer or in an arastra.
CLEAVAGE. The property of splitting more or less read-
ily in certain definite directions.
COASTER. One who picks dump, or gleans in abandoned
mines for ore in sight.
GLOSSARY. 495
COBBING. Ore sorting.
COLLAR. The top of a shaft or winze. (2) The tim-
bering of a shaft when carried above the surrounding sur-
face.
COLOR. A particle of gold in the pan.
CONCENTRATION. The removal by mechanical means of
ore from the gangue or slime.
CONTACT. The plane of meeting of two formations.
CONTACT VEIN. A vein along the plane of contact of
two dissimilar formations, consequently separating the two
formations. Von Gotta, 28.
COPPER. A metallic element ; red ; fusing point 1996
deg. Fahr. Symbol Cu. At. wt. 63.6. Sp. gr. 8.9.
COST-BOOK COMPANY. A system of mining partnership
local to Cornwall and Devon.
COUNTRY ROCK. The rock beyond the walls of a lode.
The strata between or across which the lode is found.
COURSE OF VEIN. Its strike. The horizontal line on
which it cuts the country rock.
COYOTING. Spasmodic, irregular, surface mining.
CRADLE. A rocker. A short trough for washing gold.
CRIBBING. The timber lining of a drift, shaft, winze
or mill-hole. The term also is applied to rough or light
timbering as distinguished from solid set work.
CROSS COURSE. An intersecting vein.
CROSS CUT. A level driven across the course of a vein.
A short tunnel.
CUT. To intersect a vein. OPEN CUT. A horizontal
opening at the surface not reaching cover.
CYANIDE. A compound of cyanogen with a metal. .The
Cyanide Process of gold extraction is performed by passing
an auriferous solution of potassium cyanide over zink shav-
ings, by which the values are precipitated. Henry Lewis on
Gold Mining. Thomas R. Beaumont.
DEAD WORK. The developing of a mine preparatory to
stoping. See p. 257.
DEBRIS. The loose fragments detached from the bed
rock and washed down, to which the term slide is more
appropriate ; waste rock of any kind. French.
DEEP. The lower portion of a vein.
DENOUNCEMENT. The Mexican or Spanish equivalent
to "location and record" of a claim.
DESCENSION THEORY. The theory that veins were filled
from above.
DIGGINGS. Placers. Amer.
DIKE. A fissure made and filled by plutonic action. Its
rock is most commonly porphyry. It is often barren, but in
496 GLOSSARY.
some cases mineralized ; or may carry a mineralized selvage
and so appear as the wall of a lode.
DILUVIUM. A deposit of loose boulders, earth, etc., at-
tributed, geologically, to deposition from water.
DIP. The line of declination of strata. Bainbridge.
Yale — The angle which a lode makes with the plane of the
horizon. Von Cotta, 26. The departure of a vein from the
perpendicular or from the horizontal.
DITCH. An artificial water course, flume or canal, with
or without natural channels.
DIVINING ROD.. A stick of witch hazel or other like
device used in prospecting for lodes. Laic v. Grant, 7
M. R. 57.
DOLLAR. From the German Thaler. One hundred cents.
GOLD 23.22 grains : alloy 2.58 grains ; weight 25.8 grains.
Coined 1849-1889. SILVER 371% grains; alloy 41% grains:,
weight 4121/2 grains. Coined 1794-1804, 1836-1838, 1840-
1873, 1878-1903. Legal tender unlimited. The Mexican dol-
lar contains 377.17 grains silver and 40.62 grains alloy.
Spanish dollar the same.
DOWNCAST. A ventilating shaft with descending cur-
rent of air.
DRIFT. An underground passage driven horizontally on.
or with, the vein.
DUMP. A deposit, or place of deposit, of waste rock or
tailings.
ELVAN COURSE. A plutonic dike. Lyell. Argall. Corn.
EXPLOITATION. The active working of a mine as dis-
tinguished from prospecting.
x FACE. Synonymous with breast.
FATHOM. A space 6 feet forward and 6 feet vertical
with the width of the vein. Corn.
FAULT. A dislocation of strata. Bainbridge. Yale.
The dislocation of a vein from its original position ; a heave ;
a throw. Von Cotta, 29.
FEEDER. A small vein starting from some distant point
and running into a main lode. It is practically synonymous
with spur. See Bainbridge 2.
FELDSPAR. A vitreous crystalline constituent of gran-
ite, gneiss, porphyry and many other rocks.
FISSURE VEIN. A fissure oi< crack in the earth across
its strata, filled with mineralized matter.
FLOAT. Loose quartz detached from the vein and found
below it.
FLOAT ORE. Masses or particles of ore detached from
the vein found below it. . Sec Brown v. V/9 Co. 9 M. R.
wo.
GLOSSARY. 497
FLOOKAN. A soft decomposed cross-course. Corn.
FLOOR. The rock underlying a horizontal vein or de-
posit.
FLUME. A ditch carried in frame work on or above the
surface.
FOOT WALL. The under wall of the vein.
FORFEITURE. The loss of possessory title as the result
of abandonment or failure to comply with the conditions
under which the title was held.
GAD. A small pointed wedge.
GALENA. A sulphide of lead ; when not amorphous, is
crystallized on the cubic system ; when pure contains 86.6
per cent, lead, 13.4 per cent, sulphur. Carries silver in
greatly varying quantities.
GALLERY. A level or drift ; applied chiefly to collieries.
GANGUE. Crevice material ; vein matter ; the base
material forming the matrix of the ore.
GASH VEIN. A vein which continues for practical pur-
poses only a short distance below the sod, generally narrow-
ing as it descends.
GEODE. A rounded nodule of stone containing a cavity
studded with crystals or mineral matter ; the cavity in such
nodule.
GNEISS. A rock composed of the same constituents as
granite, but foliated or stratified.
GOB FIRE. Fire in collieries produced by spontaneous
combustion.
GOLD. A metallic element ; bright yellow ; Sp. gr. 19.34 ;
fusing point 2016 degrees Fahr. Almost invariably found
native associated with a variable percentage of silver. Sym-
bol Au. At. wt. 197.2. One ounce pure gold coined in U. S.
dollars is worth $20.67.
GOSSAN. See Iron Hat.
GOUGE. A soft selvage ; a clay streak found following
a wall, or a slip or an ore measure.
GRANITE. A plutonic crystalline rock composed of
feldspar, quartz and mica.
GRASS. The surface over a mine. Corn.
GRASS ROOTS. A term used where a working is started
from, or worked up to, the surface. Amer.
GRAY COPPER. Tetrahedrite. An ore containing cop-
per 15 to 42 per cent., combined with iron, zink, silver, mer-
cury, arsenic and antimony. It varies in color, hardness
and specific gravity.
GRUB STAKE. Provisioning a prospector on a bargain
to share his discoveries.
498 GLOSSARY.
HANGING WALL. The upper wall of a vein.
HEADING. The breast or face of a working.
HEADINGS. The mass of gravel and pay dirt above the
head of a sluice.
HEAVE. The horizontal dislocation of one lode by an-
other.
HIGH EXPLOSIVES. Those of greater detonating force
than black powder.
HORSE. A mass of country rock between the enclosing
walls of a vein. To constitute a Horse, "It is necessary that
the walls should converge about the mass below and at both
ends, but the greatest known horses do not converge over
head. The two walls coming to the surface are in some in-
stances 1,000 feet apart." Testimony of Clarence King in
the Dives Case.
HUDGE. An iron bucket for hoisting.
HUNGRY. Barren.
HYDRAULICS. That method of placer mining where the
gravel is washed by a stream operating under hydraulic
pressure.
I. D. B. Illicit Diamond Buyer. Africa.
IMPREGNATION. A metallic deposit having undeter-
mined limits in no way sharply defined. Von Gotta, 87.
INCLINE DRIFT. A drift run at an incline to subserve
the drainage. (2) A misnomer applied to a slope sunk
upon a deposit having slight departure from the horizontal.
INFILTRATION THEORY. That which refers the origin of
the ore to the deposit of mineral from water holding it in
solution.
INJECTION THEORY. That which refers the origin of the
ore to the introduction of igneous fluid.
IN PLACE. In Situ. Words used in Section 2329 of the
U. S. Revised Statutes, qualifying the words "quartz or other
rock," and to distinguish lode from placer claims. See p. 151.
IRON HAT. (Eisen Hut.) The outcrop of a lode, it
being usually colored by the decomposition of the iron. Yon
Cotta, 38.
JIG. A machine for concentrating ore by means of
sieves. Corn.
JUMP. To take forcible possession of a claim. (2) To
relocate abandoned property.
KIBBLE. A kind of hoisting bucket. Corn.
LAGGING. Poles or small timbers used for spanning
from one stull-piece to another, for cribbing mill-holes and
for lining behind the timbers of a shaft.
LEAD. An objectionable form of the word lode.
GLOSSARY. 499
LEAD. A metallic element, bluish white ; fusing point
617 deg. Fahr. Symbol Pb. At. wt. 206.9. Sp. gr. 11.30.
Galena and carbonates are its most common ores.
LEDGE. A term in use on the Pacific slope synonymous
with lode. See p. 150.
LENGTH. A certain portion of a vein when taken on a
horizontal line on its course.
LEVEL. A drift along the vein ; the word generally
used where there are a series of drifts, as first level, second
level, etc. See Cambers v. Lowry, 5£ Pac. 816.
LIFT. The space between two levels.
LITTLE GIANT. A jointed iron pipe and nozzle decreas-
ing in diameter with the increase of the hydraulic pressure ;
used in placer mining.
LOCATION. Those successive acts by which a claim is
appropriated. (2) The claim itself.
LODE. An aggregation of mineral matter containing
ores in fissures. Von Gotta 26. A vein of metallic ore. A
ledge. Corn. See p. 150. (A fault in the country which
has became mineralized. A. H. Green.)
MAN HOLE. An opening just large enough to permit
access between two workings.
MATEIX. (Of the lode.) The country rock in which
the vein is found. (Of the ore.) The rock or earthy mate-
rial inclosing the ore ; the vein-stone. Latin.
MATTE. One of the products of matte or pyritic smelt-
ing. It consists either of ferrous mono-sulphide (PeS), or
of cuprous sulphide (Cu2S), with ferrous mono-sulphide in
varying proportions. Franklin R. Carpenter, Ph. D. See
Smelting.
MERCURY. Quicksilver. A shining silver-white metal,
liquid at temperature above — 40 deg. Fahr. Sp. gr. 13.5.
At. wt. 200. Boils at 669 deg. Fahr. Symbol Hg.
METALLURGY. The art of working metals, including
smelting, refining, and parting them from the ores.
MICA. One of the constituents of granite. When sep-
arately crystallized is found in clear laminated plates.
Found in the lode as well as in the matrix of the lode.
MILL-HOLE. A passage left in the stope for throwing
down rock and ore.
MILL-RUN. The returns of a lot of ore ; the assay of
ore in quantity as distinguished from a specimen assay.
MINE. Any excavation made for mineral. (2) An
open as distinguished from an untouched deposit. (3)
Underground as distinguished from superficial workings or
quarries.
MINER'S INCH. There is an attempted statutory defini-
tion in Colorado M. A. S., Sec. 4643, which is obscure and
inexact. See also 2467. Orifices constructed as this statute
:>n> GLOSSARY.
directs, will deliver through each square inch of opening, a
quantity which varies from 1.4 to 1.7 cubic feet of water per
minute. The custom among engineers is to take 1.6 cubic
feet of water per minute as the equivalent of an inch.
"A miner's inch is the quantity of water which will
escape from a reservoir through an aperture in its side 1
inch square, whose center is 6 inches below the constant
level of the water and is equivalent to 1.626 cubic feet per
minute. * * * The most common illustration of the
miner's inch is a hole 1 inch square through an inch board."
Van Wagenen, Manual Hydraulic Mining, p. 17.
MINER'S RIGHT. The license to locate, used in Aus-
tralia.
MOLYBDENITE. A sulphide of the metal, Molybdenum ;
found in scales with metallic luster closely resembling tin
foil or gray copper ; also in a granular form, showing steel
blue flake crystals. Valuable and marketable when concen-
trated, as an alloy for high grade steel. A. B. Frenzel.
MOYLE. A drill or short bar sharpened to a point, used
in cutting hitches and in broaching.
MUCKER. The man who fills the bucket or tnv*n.
NODULE. A small, rounded, stony concretion.
OPEN CUT. A longitudinal surface working not enter-
ing cover.
OPERATOR. One who works a mine either as owner or
lessee.
ORE. The mechanical or chemical compounds of the
metals with baser substances. The conventional divisions
in the ore market are : DRY ORE : An ore which does not
contain any lead, or less than 5 per cent. MILLING ORE : A
dry ore that can be amalgamated or treated by leaching and
other processes ; usually these ores are low grades, free, or
nearly so, from base metals. SHIPPING ORE : Such as is
better adapted to smelting than any local treatment. Any
ore of greater value when broken than the cost of freight
and treatment. REFRACTORY ORE : An ore containing in
quantities, zink, arsenic, antimony or other base metals,
which prevent economical treatment by usual and available
processes. W. J. Chamberlain.
ORE RESERVES. The ore body where exposed ready for
stoping.
OUTCROP. That portion of a vein appearing at the sur-
face.
OUTPUT. The gross product of a mine.
PAN. An iron basin used in gold prospecting.
PATCH. A small placer claim outside of the main gulch.
PATIO. A yard or court. The space where ore is
mixed and amalgamated by tread of horses. Sp.
GLOSSARY. 501
PATIO PIIOCESS. The Mexican method of amalgamation
of silver ores.
PAY ROCK. The lode material in which the mineral or
pay is found. See Quartz.
PAY STREAK. The ore body proper, or the seam of de-
composed material which takes its place and preserves the
continuity of the ore body.
PENT HOUSE. A shed or horizontal barricade across
one end of a shaft, made of strong timbers loaded with rock
to protect against any accidental fall from above. Corn.
PHONOLITE. A volcanic rock of porphyritic texture ;
the crystals in some cases so minute as to be imperceptible
unless magnified ; thin slabs ring when struck, whence the
name, literally, sounding stone.
PINCH. A narrow space where the walls come close
together.
PIT. A shallow shaft.
PITCH. The dip of a lode.
PLACER. A deposit of gold not in place. Applied to all
classes of gold deposit, including cement and channel claims,
except lodes in place. For special meaning under Section
2329 TJ. S. Rev. St. see p. 192.
PLAT. A small chamber on the side or sole of a level
where it intersects a shaft, made to facilitate dumping.
Where it is cut in the sole it is called a trip-plat. Corn.
POCKET. A detached ore body ; a nest of ore.
POCKETY. A term applied to a mine where the pay ore
occurs in small detached bodies with intervals of poor ore
or barren material. The word implies a slur on the mine.
Paull v. Halferty, 9 M. R. 149.
PORPHYRITIC GRANITE. A base of granite containing
prominent crystals of feldspar.
PORPHYRY. A general term including such plutonic
rocks as exhibit well formed crystals, usually of feldspar, in
a finely granular or compact base of the same. Or.
PROSPECTING. A search for deposits ; applied both to
the seeking for undiscovered veins and to the investigation
of the value of known veins by exploration.
PYRITES. (White.) A sulphide of iron. (Yellow.) A
sulphide of copper. Bright crystallized metallic looking and
very common gold bearing ores usually low grade and spoken
of in common parlance as the "Iron." Or.
QUARRY. Any open work in rock on a plan of excavat-
ing the entire mass, as distinguished from working a seam
or vein by shafts or approaches under cover.
QUARTZ. Silica. A constitutent of granite. The free
gold of California being found in quartz, the word was ap-
plied to the gangue of such lodes and so to other forms of
502 GLOSSARY.
vein matter, until it is now used vaguely to mean the ore,
the float, the gangue, or that part of the gangue which in-
dicates the pay streak. In the Acts of Congress it is used
with the word rock (quartz or other rock) in the sense of
pay rock.
QUARTZITE. A metamorphosed sandstone ; a rock con
taining usually about 98 per cent, silica with a small per-
centage of foreign materials, principally iron.
QUICKS ILVEE. See Mercury.
RAISE. A shaft or winze which has been worked from
below.
RAND. Range of hills. Dutch.
REEF. An Australian term for lode or ledge.
REGULUS. The Alchemic term for "matte."
RHYOLITE. A name common to igneous rocks of a wavy
texture indicative of movement or flowing when in a fluid
state.
RIFFLE BLOCKS. Cross sections of timber set on the
floor of a sluice, with irregular spaces between, in which the
gold settles. American.
ROB. To gut a mine ; to work for the ore in sight with-
out regard to supports, reserves or any future considerations.
ROCKER. See Cradle.
ROOF. The stratum or rock overlying a deposit, or flat
vein. The top or back of any working.
ROYALTY. The dues to the lessor.
RUSTY. Oxidized. Ore coated with oxide. Applies to
gold wrhich will not easily amalgamate.
SCALE. A loosened fragment of rock threatening to
break off and fall.
SCHIST. Crystalline or metamorphic rock with slaty
structure ; usually carrying mica, sometimes argillaceous.
SEGREGATIONS. All those aggregations of ore having
irregular form but definite limits. They differ from beds
and lodes by the irregularity of their form ; from impregna-
tions by their definite limits. Von Gotta, 81.
SELVAGE. A lining ; a gouge ; a thin band of clay often
found in the vein, upon the wall.
SET. Portion of ground taken by a tributer.
SHAFT. A pit sunk from the surface ; an opening more
or less perpendicular sunk on, or sunk to reach, the vein.
SHIFT. (1) A miner's turn or spell of work. Web-
ster. Two shifts is the equivalent of 16 to 20 hours work,
three shifts, 24 hours work, of one man. (2) All the
miners who go on and off at the same hour are known as
one shift. In large mines there are usually three, styled
the day, night and graveyard shifts. Ben). C. Catren, Jr.
GLOSSARY. 503
SILICA. In chemistry it means Silicon dioxide. Form-
ula, Si.O-2. 1* is ordinary quartz. Between ore buyers and
sellers everything not soluble in nitric and hydrochloric
acids is counted as "silica" — a determination often mani-
festly unjust to the seller. FranJclin R. Carpenter, Ph. D.
SILVER. A metallic element ; the whitest of the metals ;
Sp. gr. 10.53 ; fusing point 1873 degrees ; symbol Ag ; At. wt.
107.93. One oz. pure silver coined in IT. S. dollars is worth
$1.2929, gold.
SILVER GLANCE. An ore ; when pure contains 87 per
cent, silver and 13 per cent, sulphur.
SKIP. A square hoisting bucket running on guides, or
in grooves.
SLICKENSIDES. Smooth, polished portions of the wall
or of some vertical plane in the lode, caused by friction. It
may occur on the ore itself. German.
SLIDE. (1) One kind of fault — the vertical disloca-
tion of a lode. (2) The mass of loose rock overlying either
lode or country.
SLOPE. An opening driven upon the inclination of the
vein.
SLUICE. A series of boxes set in line and floored with
riffle blocks to catch the gold in a placer mine.
SMELTING. The reduction of metals from their ores in
furnaces. It is a form of the word melt. In smelting the
ore is melted. In other processes it is roasted. MATTE
SMELTING. A process of smelting where the values in the
ores are collected in an iron and copper sulphide (regulus)
technically called "matte." When iron and copper pyrites
are added to the charge for their fuel value as well as their
matte-forming properties, the process is called "pyritic
smelting." FranJclin R. Carpenter, Ph. D.
SOLE. The floor of a horizontal working.
SOLLAR. Any platform or wooden floor or covering in
a working. Corn.
SOUGH. A drain. Eng.
SPAR. A 'general term applied to rock with distinct
cleavage and luster.
SPILING. Timbering used in quicksand or loose ground
where lathes are driven behind timbers and kept flush with
the heading.
SPUR. A branch or off-shoot from a larger vein.
STAMPS. Machine for crushing ores by vertical stroke.
STOPE. The working above or below a level where the
mass of the ore body is broken. Corn.
. STOPING. The act of breaking the ore above or below
a level ; when done from the back of the drift it is called
overhand or back stoping ; when from the sole it is under-
hand stoping.
504 GLOSSARY.
STRATUM. A bed of rock or earth of any kind. Dana.
The plural is strata.
STRIKE. The extension of a lode or deposit on a hori-
zontal line. Von Cotta 19. Synonymous with trend and
course.
STULLS. Cross timbers at the foot of a stope.
.SUBLIMATION THEORY. That which refers the filling of
fissures to material deposited from ascending steam, or by
condensation from a gaseous condition.
SULPHIDE. The chemical union of sulphur with a metal.
SULPHUR. A non-metallic element. Sp. gr. 205. Sym-
bol 8. At. wt. 32.06. Yellow, fusible, brittle, insoluble ;
except Oxygen, the most common base combining ele-
ment in metallic ores, such as Pyrites. As a com-
mercial product most commonly mined from old volcanic
craters. Greatest production, Sicily. Largest deposits in
U. S., Louisiana ; Black Rock, Utah : Mineral county, Colo-
rado. T. 8. Todd, Importer, 25 Broad street, N. Y.
SULPHURET. A sulphide. Sulphide is the more recent
and approved term.
SUMP. The extension of a shaft, forming a pit for
the collection of water. Corn.
SYLVANITE. A gold-silver-tellurium combination. Pure
steel gray to silver white, inclining to pale yellow. Gold
24.5 ; silver 13.4 ; tellurium 62.1. Usually in fine grains
or crystals. A. B. Frenzel.
SYNDICATE. An association or council of persons ; in
use since the civil war to designate any combination formed
to carry out a large financial enterprise.
TACKLE. The windlass, rope and bucket. Corn.
TAILINGS. The refuse discharged from the tail or lower
end of a sluice, or washed from any sort of placer working.
TELLURIUM. A silver white, brittle substance, generally
classed among metals ; usually combined with gold, silver,
lead and copper. Sp. gr. 6.65. At. wt. 127.6. Symbol Te.
TIN. A soft, malleable, white metal. Sp. gr. 7.2. Fus-
ing point 442 deg. Fahr. At. wt. 119. Symbol 8n.
TRIBUTERS. 'Miners who work a set, or piece of ground,
taking the proceeds as wages, after royalty deducted, but
who work under direction of the owners and hold no pos-
session or title as lessees.
TROUBLE. A fault.
TUNDRA. The moss, or scrub-covered, regions of the
Arctic.
TUNGSTEN. (Wolfram.) A hard, heavy, grayish white
metal, that fuses with great difficulty. Sp. gr. 17.6. At. wt.
184. Its ores are Scheelite, Huebnerite and Wolframite, all
of heavy specific gravity. Wolframite is similar to iron in
GLOSSARY. 505
appearance, but when scratched shows reddish brown. Hueb-
nerite shows reddish brown, straight and fan-shaped crys-
tals. Matrix of both, usually white quartz or buff-colored
quartzite. A. B. Frensel.
TUNNEL. A horizontal excavation starting at the sur-
face and driven across the country for discovery or working
purposes.
. TUT WORK. Work paid for by the foot as distinguished
from tribute work.
UPCAST. A ventilating shaft where the air ascends.
URANIUM. A metallic element usually found as an
oxide UaOs. Bright lemon yellow. Frequently associated
with Vanadium and then called Carnotite, UgOg, VjOs.
Pitch Blende is a black oxide of Uranium, of heavy specific
gravity, without luster. A. B. Frensel.
VANADIUM. Found as oxide VgOs. Frequently asso-
ciated witft Uranium as "Carnotite." Largest known de-
posit is in a bed of Jurassic Sandstone, San Miguel county,
Colorado, carrying about three per cent. Its presence gives
dark green shade to the rock. Valuable as an alloy to
harden steel. A. B. Frenzel.
VEINS. Aggregations of mineral matter in fissures of
rocks. Von Gotta 26; Bainbriclge 2. The word vein has a
broader scope than lode, including non-metallic beds. See
p. 150. It is also applied, in working, to smaller seams
threading the greater deposit. Sec Vend and Veto.
VENA. A small vein or the branches of the veta, or
main vein. Span.
VETA. A main vein. Span.
VUG. A cavity in the ore* or rock.
WALL. The plane of the country where it touches the
side of the vein, when used in reference to lodes. The side
of a level or drift, when used with reference to the workings.
See p. 17$.
WHEAL. A pit or hole in the ground. A mine. The
names of most mines in Cornwall are preceded by the word
Wheat. Old form Huel. Corn.
WHIM. A machine for raising the bucket by means of
a revolving drum.
WHIP. An apparatus for raising the bucket with rope
and pulleys, by horse power on a straight drive.
WINZE. A shaft sunk from a level ; not necessarily con-
necting two levels.
ZINK. A metallic element : bluish white ; fusing point
773 deg Fahr. ; generally found as a sulphide (blende) or
as a carbonate (calamine). At. wt. 65.4. Sp. gr. 8.9. Sym-
bol Zn.
506 INDEX.
INDEX.
Abandonment, Page 84.
Of Possessory Claim, 13.
Of Ditch, 183.
Conditional, 86.
Relocation .after, 112.
Of Tunnel, 232.
Pleading, 8.7, 102.
Abstract of Title—
In Examining Title, 274.
On Application for Patent, 398
On Adverse Claim, 434.
Accidents, 322.
Acknowledgment, 249.
By Individual, 242.
By Wife, 248.
By Corporation, 249, 303.
By Attorney in Fact, 250.
To Contracts, 255.
To Articles of Incorporation, 289.
Acreage —
Of Lode Claim, 411.
Of Placer, 202.
Government Price, 411.
Adverse Claim, 431. See Forms. Ejectment.
By Known Lode, 205.
By Mill Site, 217.
By Tunnel Site, 232.
By Aliens, 281.
Ejectment, Supporting, 314.
By Whom Verified, 435.
By Co-owner, 436.
Amendment of, 438.
What Should Adverse, 439.
Proceedings After Determination, 450.
INDEX. 507
Adverse Claim — Continued.
Annual Labor Pending, 451.
Statute Concerning, §2326, 467.
Land Office Rules, 361.
Form of, 432.
Complaint Supporting, 443.
Answer in, 445.
Certificate of Suit, 441.
Effect of Failure to Assert, 128, 130.
Waiver of, 448.
Affidavit—-
Of Annual Labor, 104.
Of Citizenship, 399.
In Land District, 412.
By Agent, 413, 435.
Agent —
Location by, 57.
Lease by, 266.
Adverse by, 435.
Of Foreign Corporations, 302.
To Procure Patent, 412.
Agricultural Lands, 220, 225, 472, 473.
Alaska, 456, 474.
District Rules, 8.
Location of Claim in, 60, 201.
Tide Lands in, 458.
Timber in, 478.
Act of 1900, 457.
Aliens, 281.
Amendment —
Of Location or Record, 121, 165.
Angles, 49, 176.
Annual Labor, 88.
On Group Claims, 94.
Proof of, 103.
By Tunnel, 233.
On Old Lodes, 89.
Equity of the Law Requiring,, 101.
On Placers, 106.
508 INDEX.
*
Annual Labor — Continued.
Pending Patent, 92, 451.
After Entry, 92.
Certificate in Lieu of, 105.
Time to Perform, 92.
District Rules, 7, 89, 95.
Pending Adverse, 451.
Pleading, 87, 102.
Soldiers' Claims, 16.
Roads and Trails as, 187.
Apex, 156.
Stakes Must Cover, 49.
Survey Presumed to Include, 137.
No Apex, No Dip, 173.
Conveyance of Fraction of, 246.
Statute, Section 2322, 463.
Application for Patent, 382. See Forms.
Land Office Rules, 351.
•Surveys for, 369.
Circular to Applicants. 378.
Adjoining Claims, 395.
By Agent, 412.
By Corporation, 414.
On Surveyed Lands, 422.
For Mill Site, 414.
Proof of Nonabandonment, 401.
Cancellation of Entry, 407.
By Trustee, 428.
Without Record Title, 429.
Conflicting, 131, 429.
Statute, 466.
Appropriation, 28, 29.
Of Water, 180.
Arizona, Location of Claim in, 61, 198
Assay, 341.
Association of Persons, 17, 195.
Attorney in Fact —
Acknowledgment by, 250.
Power to Apply for Patent, 413.
INDEX. 509
Boundaries —
Staking, 46.
Surveys of Mining Claims, 369.
Monuments Control, 56.
Immaterial Calls, 75.
Building Stone, 191, 193.
Bureau of Mines, 340.
By-Laws, 291.
California, Location of Claims in, 61, 201.
Children, Employment of, 313.
Citizenship —
Land Office Rules, 359.
Form of Proof, 399.
Statute, 463.
Of Corporation, 359, 401.
Pleading and Proof of, 283.
Proof by Witnesses, 401.
Claim. See Possessory Claim, Lode.
Acreage of Lode, 411.
Acreage of Placer, 202.
Length, 17-21.
Width, 21-25.
Side Claims, 17.
Divided into Lodes and Placers, 192.
Possessory, 12-14.
Right to Swing, 38, 121.
Fractions, 58.
Coal Lands, 475.
Coal Mines —
Drainage, 178.
Penal Regulations of, 313.
Colorado, Location of Claim in, 25, 59, 191.
Commissioner of Mines, 340.
Condemnation, 185, 188.
Contract —
Mining Sale, 250, 256.
To Sell and Buy, 254.
510 INDEX.
Contract — Continued.
Prospecting, 270.
To Sink Shaft, 273.
Conveyance, 241.
Before Record, 124.
Of Water Rights, 183.
Agreements for, 250.
In Examining Title, 275.
Form of Warranty, 241.
Form of Quit Claim, 243.
Subdividing Lode, 246.
Acknowledgment, 249, 250, 255.
Escrow, 255.
Mining Deed, 244.
Witnesses, 248.
Short Form Deed, 245.
Wife's Signature, 248, 276.
Corporation, 286.
Location by, 57.
Foreign, 302.
Citizenship of, 359, 401.
Filing Fees, 298.
Form of Articles, 288, 290, 297.
First Meeting, 291.
By-Laws, 291.
Reports, 294.
Smelting and Sampling Companies, 298.
Ditch Company, 297.
License Tax, 299.
Acknowledgments by, 249.
Application for Patent by, 414.
Costs, 444.
Crevice, 42.
Crimes, 310.
Cross Lodes, 138.
In Conveyance, 247.
Courses, 39, 54, 56.
Custom, see District Rules.
INDEX. 511
Damages —
In Trespass, 320.
For Negligence, 322.
Measure of, 320.
For Dumping, 209.
On Condemning Ditch, 185.
Dead Work, 257.
Deed. See Conveyance.
Departure from Side Lines, 146, 161, 162.
Deposits —
In Place, 151, 155.
Richness of, 152.
Deputy Surveyor, 363, 369, 370.
Description, 72.
Defective, 73.
In Conveyance, 245.
Wrong in Patent, 136.
Descriptive Report, 419.
Diagram of Lode, 49, 51, 71.
Showing Excessive Width, 25.
Showing Apex, 162, 166, 169.
Of Official Survey, 386.
Dip, 171.
Of Deposits or Contacts, 158.
Veins Uniting on, 142.
Right to Follow, 157.
Veins Cut on, 164.
Plat Showing, 166, 169.
Degrees of, 172.
Discovery on, 163.
Discovery, 27.
On Old Lodes, 25.
After Location, 32.
Where Made, 34.
Methods of, 35.
Under Present Law, 27.
In Open Cut, 28, 44.
In Tunnel, 28, 44, 46.
512 INDEX.
D i sco ve ry — Continued.
Gives Title, 29.
When Complete, 30.
By Drill Hole, 35.
Time It Holds Claim, 35.
On a Spur, 176.
Location Without, 315.
Outside of Discovery Shaft, 33.
Secret Underground, 45.
On Placers, 194, 195.
Discovery Shaft —
And Discovery Distinguished, 32.
Statute Requiring, 25.
Must Be 10 Feet Deep, 27, 41.
Must Show Crevice, 42.
Must Be on Public Domain, 39.
On Town Site, 39.
Patent Over, 39.
Claim Must Include, 40.
Sale of, 40.
Time to Sink, 28.
Where Sunk, 34.
In Slide or Country, 43.
Walls in, 43.
For Each Claim, 44.
District Rules, 3.
Affecting Labor, 7, 89.
Ditches, 179.
Abandonment of, 87.
Location Notice, 181.
Location Certificate, 182.
Do Not Pass as Appurtenances, 183.
Condemnation Proceedings, 185.
Ditch Company, 297.
Dower, 248.
Drainage, 178.
INDEX. 513
Dump, 188.
Location of, 210.
For Tailings, 211.
For Tunnel, 229.
Easements, 179, 186.
Ejectment, 314.
Supporting Adverse, 441.
Proper Court, 440.
Certificate of Suit, 441.
Form of Complaint, 443.
Form of Answer, 445.
Verdict in, 447, 449.
Eminent Domain. See Condemnation.
End Lines —
On Prior Claims, 47.
Parallel, 160, 173.
Converging, 161.
Plat Showing, 166.
Relation to the Strike, 166.
One Set for All Veins, 166.
Following Lode Beyond, 167.
Entry, 407.
Annual Labor After, 92.
Death of Applicant, 428.
After Adverse, 450.
Of Area Not in Dispute, 449.
Escrow, 255.
Estoppel, 108.
Examination of Title, 273.
Excluded Areas, 132, 374, 388, 407.
Extensions, 84.
'Fault, 153.
Feeders, 175.
Fees—
Of Surveyor General, 381.
In Land Office, 403.
Of Secretary of State, 298.
17
514 INDEX.
Fiduciary Relations, 117.
Fixtures, 266.
Float Ore, Location on, 31.
Forcible Dispossession, 312, 334.
Forcible Entry, 319.
Foreign Corporations, 302.
Forfeiture, 107. See Abandonment.
Parties Essential to, 96.
Relocation Before Complete, 98, 101.
To Co-Owner, 107.
Notice, 109.
Form of Proof, 109.
Of Placers, 106.
Forms —
Acknowledgment —
By Individual, 242.
By Corporation, 249, 303.
By Attorney in Pact, 250.
To Articles of Incorporation, 289.
Agreement to sell, 251-254.
Amended Location Certificate, 119, 121.
Annual Labor Affidavit, 104.
Annual Report of Corporation, 295.
Articles of Incorporation, 288, 290, 297, 298.
Assessment, 300.
By-Laws, 291.
Certificate of Stock Paid, 294.
Contract to Sell and to Buy, 254.
Designation of Agency, 302.
Ditch Incorporation, 297.
Ditch Location Certificate, 182.
Dump Location Notice, 229.
Ejectment, Complaint and Answer, 443-445.
Escrow, 255.
Forfeiture Notices, 109, 110.
Foreign Corporation Certificate, 302.
Injunction Notice, 331, 335.
Lease, 258.
Lease and Option, 263.
INDEX. 515
Forms — Continued.
Liens, Clerk's Certificate of, 279.
Lode Notice, 36, 38.
Lode Location Certificate, 72.
Mill Returns, 262.
Mill Site Location Notice, 213.
Mill Site Location Certificate, 213.
Miner's Lien, 237.
Notice to Ore Buyers, 309.
Notice of Leased Mine, 240.
Organization Meeting, 291.
Placer Notices, 196, 197.
Placer Location Certificate, 198.
Placer Lease, 263.
Prospector's Notice, 36.
Prospecting Contract, 270.
Protest, 454.
Quit Claim Deed, 243.
Relocation Certificate, 119, 121.
Resolution to Assess, 300.
Sale Subject to Examination, 253.
Surveyor's Lien, 239.
Title Bond, 251.
Tunnel Location Notice, 229.
Tunnel Location Certificate, 227.
Warranty Deed, 241.
Working Contract Sale, 252.
Forms in Application for Patent —
A. Request for Official Survey, 382.
B. Order for Survey, 383.
C. Preliminary Plat, 385.
D. Field Notes, 387.
E. Approval of Survey, 391.
F. The Final Plat, 391. '
G. Surveyor General's Approval of Survey and
Certificate of Improvements, 392.
H. Approved Field Notes, 392.
I. Surveyor General's Certificate to Tran-
script, 393.
K. Notice of Application, 394.
L. Proof of Posting, 395.
516 INDEX.
Forms in Application for Patent — Continued.
M. Application, 396.
N. Abstract of Title, 398.
0.. Proof of Citizenship, 399.
P. Publisher's Contract, 402.
Q. Publication Notice, 402.
R. Proof of Notice Remaining Posted, 405.
8. Proof of Publication, 405.
T. Proof of Sums Paid, 40G.
U. Application to Purchase, 406.
V. Register's Certificate of Posting, 408.
W. Register's Final Certificate of Entry, 409..
X. Affidavit of Lost Receiver's Receipt, 410.
Y. Power of Attorney, 413.
Mill-Site—
Z. Non-Mineral Affidavit, 414.
AA. Affidavit of Use for Mining Purposes, 415.
Placer —
BB. Proof of No Veins, 418.
GC. Descriptive Report, 419.
DD-GG. Exhibits to Descriptive Report, 420-
421.
Forms in Adverse Claim —
HH. The Adverse, 432
JJ. Certificate of Suit, 441.
KK. Complaint Supporting, 443.
I/I/. Answer, 445.
MM-NN. Verdicts, 447.
Fraud, Patent Obtained by, 134.
Sale Induced by, 256.
Glossary of Mining Terms, 492.
Gold Dust, 310.
Group Claims —
Apex Rights of, 165.
Annual Labor on, 94
Patenting, 425.
$500 Improvements, 426.
INDEX. 517
Highways, 186.
Holidays, 438.
Homestead, 201, 473.
Idaho, Location of Claim in, 61, 199.
Improvements. See Land Office Rules.
$500 Worth, 92, 427.
What Counts as, 93, 94, 427.
By Tunnel, 233.
On Mill Site, 415.
Completed Pending Application, 427.
On Adverse, 434.
Indian Reservation, 305.
Injunction, 326.
Against Tailings, 209.
Against Ore Buyers, 309.
Inspection and Survey, 273, 336.
Inspector of Mines, 340.
Interference of Claims, 136.
Internal Revenue, 250.
Irrigation, 185.
Jumping Act, 312, 334.
Known Lodes —
Excluded from Placer, 203.
What Are, 203.
Not Recorded, 204.
Adverse by, 205, 425.
Proof of, 206.
Width of, 207.
Land Office Rules, 344.
Abstract of Title, [Rule 42.]
Adjoining Claims, Call for, [10.]
Adverse Claim, [78-88.]
Affidavit, Who May Take, [69.]
Affidavit, Out of District, [70.]
518 INDEX.
Land Office Rules — Continued.
Agricultural and Mineral Contests, [101-111.]
Alaska, [112, 113.]
Annual Labor, [12-15, 55.]
Application for Patent, [34-57.]
Area and Conflicts, [38, 44, 149, 153.]
Diagram of Claim, [37, 161.]
Entry, [52.]
Proof of $500 Improvements, [25, 48-50.]
Lost Records, [43.]
Newspaper, [45-47, 89.]
Notice, [46.]
Numbering Surveys, [36, 72.]
Official Survey, [34, 35.] General Provis-
ions, [115-169.]
Posting Plat, [39, 40, 51, 73.]
Proof of Sums Paid, [52.]
Publisher's Contract, [45.]
Statement of Claimant, [41.]
Building Stone, [20, 114.]
Certificates of No Suit, [76, 88.]
Chain of Title Broken, [74, 75.]
Citizenship, Proof of, [66-70.]
Deputy Surveyors, [89-98, 115-121, 128.]
Descriptive Report on Placer, [167.]
Errors in Surveys, [162-166.]
Fees and Charges, [89-98, 120, 122.]
Forest Reserves, [114.]
Forfeiture, [15.]
Hearing to Determine Character of Land, [99-
111.]
Improvements, [156-160.]
Location, [4-11.]'
Lode Claims, Length, [4.]
Width, [5.]
Size, [6.]
In Placer, [26, 151.]
Mill Sites, [61-65, 150.]
Oil Claims, [21.]
Old Lodes, Status of, [2.]
INDEX. 519
Land Office Rules — Continued.
Placer Claims, Location and Patenting of, [19-
30, 58-60.]
Possessory Right by Limitation, [74-77.]
Protest, [53.]
Railroad Selections, [102.]
Record, [13, 18.]
Salines, [31-33.]
School Lands, [20.]
Side Veins, [2, 3.]
Stakes and Corners, [10, 143-14(5.]
Ties, [9, 36, 135-142, 147, 158.]
Timber, [114.]
Trustee, Entry by, [54.]
Tunnels, [16-18.]
Larceny, 311.
Lease, 257.
Form of, 258, 264.
By Agent, 266.
And Option, 263.
Assignment of, 267.
Miner's Lien, 240.
Ore Mined by Trespass, 321.
Non-Assessable Interest in, 267.
Ledge, 150
Length of Lode Claim —
Before May 10, 1872, 17.
At Various Dates, 19.
Since May 10, 1872, 20.
How Distributed, 20.
Excessive, 21.
License, 268.
Of the United States, 10.
To Construct Ditch, 184.
Liens, 235.
How Affected by Patent, 235.
Miner's, 236.
Covenant Against in Lease, 260.
Certificate of, 279.
520 INDEX.
Liens — Continued.
Surveyor's, 239.
In Examination of Title,^278.
Limitations, 338.
Location, 27-59.
Definition of, 37.
Statutory Requirements of Various States, 59-
67.
Formal Parts of, 37.
Of Old Lodes, 25.
Of New Lodes, 27.
Of Placers, 196.
Of Tailings Claim, 211.
Diagram of, 49, 51, 71.
Not Covering Vein, 49, 148.
Without Discovery, 32, 315.
Excessive, 21.
Possession Without, 78, 82, 315.
One or Both Parties in Default, 79, 81.
Presumption of, 318.
Land Office Rules, 344.
Without Surveyor, 50.
Of Tunnel Site, 226.
Of Lodes Cut in Tunnel, 229.
Across the Strike, 58.
Conflicting, 247.
Location Certificate, 67-84.
Statutory Requirements, 59-67.
Form of Lode, 72.
As Proof of Location, 318.
Parol Proof of, 75.
Test of Sufficiency, 76.
Amended, 119, 121.
Where Voidable Only, 123.
Form of Ditch, 182.
Form of Placer, 198.
Form of Mill Site, 213.
Form of Tunnel, 227.
In Examining Title, 275.
Verification of, 77.
INDEX. 521
Location Monument, 372.
Location Notice —
Statutes Requiring, 27, 59-67.
On Lode, 36, 38.
On Ditch, 181.
On Placer, 196.
Location Stake, 37.
Notice on, 36, 38.
Removal of, 311.
Lode, Defined, 150.
Length of Old Claims, 17.
Present Length, 20.
Width, 21-25.
Discovery and Location, 25-59.
Size or Value, 33.
Uniting on Dip, 142.
Wider than Claim, 150.
Proof of Continuity, 153, 155.
Side Veins, 144, 145.
"In Place," 151, 155.
Test of Value, 152. '
Record, 67.
Diagram, 49, 51, 71.
Interferences, 136.
Within Placer, 202.
Cross, 138.
Located Over Placer or Mill Site, 225. ,
Cut in Tunnel, 229.
Cubic Incidents of, 172.
And Placers Distinguished, 417.
Group of, in Patent, 425.
Lodes, Veins and Ledges, 150.
Malicious Mischief, 312.
Mandatory Writ, 334.
Married Women, 248, 276.
Measure of Damages, 320.
Mexican Grant, 284.
Mill Returns, 262.
522 INDEX.
Mill Site, 212.
Application for Patent on, 414.
Separate Application, 217.
Must Be Non-Mineral, 215, 220.
Location Certificate, 213.
Patented, 220.
Land Office Rules, 358.
Non-Mineral Affidavit, 414.
Statute, Section 2337, 472.
Mineral Land, Comparative Value, 153, 215.
Conclusiveness of Patent, 133.
Mineral Value, 152, 194.
Miner's Lien, 236.
Covenant Against, in Lease, 260.
Miner's Rights, 10.
Miner's Title —
Recognition of, 10.
Nature of Estate, 12, 126.
Mining Claim. See Claim, Possessory Claim, Lode.
Mining Districts, 3.
Mining Lease. See Lease.
Minors, 57, 111, 313.
Montana, Location of Claim in, 62, 199.
Monuments, 53, 72. See Land Office Rules.
Naturalization, 282.
Negligence, 322.
Nevada, Location of Claim in, 63, 200.
New Mexico, Location of Claim in, 64, 201.
Newspaper, In Application for Patent, 402.
In Forfeiture, 108.
Non-Contiguous Tracts, 416.
North Dakota, Location of Claim in, 64, 201.
Notice-
Lode Location, 36, 38.
Placer Location, 196.
INDEX. 523
Notice — Continued.
Renewing, 37.
Changing Names on, 124.
On Underground Discoveries, 45.
Injunction, 331, 335.
Of Forfeiture, 109.
To Ore Buyer, 309.
Oil Land, as Placer, 192, 469.
Oil Wells, 313.
Open Cut, Discovery in, 28, 44.
Option, 251, 263.
Ore Buyers, 307.
Ore Contracts, 306.
Ore Salting, 310.
Ore Stealing, 311.
Oregon, Location of Claim in, 65, 201.
Overlapping Claims, 115, 132, 138, 141.
Annual Labor on, 100.
Partnership, 266.
Patent, 125.
Application for, 382.
Land Office Rules, 351.
Not Divest Highway, 187.
Lodes Dipping Under, 221.
In Examination of Title, 278.
To Assignee, 428.
Suit to Cancel, 134, 338.
Pay Ore, In Discovery, 33.
Penal Provisions, 310.
Philippine Islands, 459.
Placer, 190.
As a Lode Claim, 134.
Appropriation of Water, 180.
What Constitutes, 192.
524 INDEX.
Placer — Continued.
Location Certificate, 198.
Location Notice, 196.
Size of, 195.
Location on Surveyed Land, 197.
Lease of, 263.
Association to Locate, 195.
Statutes of IT. S. and Colorado, 190.
Statutes of Other States, 198-201.
Lodes Within, 202, 423, 424.
Annual Labor on, 106.
Application for Patent, 202, 417.
Width of Lode in, 207.
Forfeiture of, 106.
What Patent Covers, 219.
Reservation of Lodes, 223.
Joinder of, in Application, 425.
Land Office Rules, 348, 357, 377.
Application for Patent on Surveyed Lands, 422.
Pleading —
Of Suit Brought, 315.
Abandonment, 87.
Forfeiture, 102.
Possession —
Without Record, 78.
During Location Period, 82.
Defective Record Aided by, 83.
As Notice, 280.
Without Location, 315.
How Proved, 317.
In Ejectment, 314.
Possessory Claim, 10, 12.
Abondonment, 13, 85.
Vested Estate and Freehold, 12, 13.
Power of Attorney, 413.
Proof —
Of Citizenship, 399.
Of Labor, 103, 104.
Of Forfeiture, 108, 109.
Of No Known Lodes, 418.
INDEX. 525
Prospecting Contract, 270.
Protest, 452.
Publication —
To Enforce Forfeiture, 110.
In Patent Application, 402.
Certificate of, 405.
Period of, 403.
Public Domain —
Occupation of, 10.
Paramount Title in, 12.
Segregation of Claims, 128.
Quarry, as Placer, 193.
Quartz, in Discovery, 33.
Quit Claim Deed, 243.
Real Estate, 13.
Dump Is, 189.
Receiver's Receipt, 136, 409.
Cancellation of, 407.
Affidavit of Loss, 410.
Record, 67.
Time to Record, 68.
Of Location Notice as Certificate, 69.
Definition of, 70.
Description in, 72.
Possession Without Record, 78, 82.
Statute Requiring, 68.
Priority, 78.
Relation —
Doctrine of, 97, 122, 129, 143.
Water Rights, 184.
Relocation, 112.
Upon New Discovery Shaft, 34.
Before Year Expires, 101.
Of Abandoned Claims, 112.'
Instead of Annual Labor, 114.
Non-Abandoned Claims, 118.
After Patent Applied for, 115.
526 INDEX.
Relocation — Continued.
By Co-Owner, 115.
By the Owners, 118.
Form of Certificate, 119, 121.
After Loss of Discovery Shaft, 120.
Replevin, 325.
Reservation — See Severance.
In Placer Patents, 201.
In Town Site Patents, 222.
In Patents Generally, 224.
Indian, 305.
Military, 475.
Government, Right of Way on, 187.
Of Minerals by Deed, 248.
Right of Way, 186.
To Cross Lodes, 138.
To Oil Pipe Lines, 474.
Roads, 186.
Rock in Place, 151, 155.
Royalty, 258-261, 264, 265.
Rules for Official Survey, 371.
Salines, 193, 350.
Sampling and Smelting Companies, 297, 307.
Notice to, 309.
Scales, False, 310.
School Claims, 15.
School Lands, 221.
School of Mines, 343.
Seepage, Show of Mineral by, 153.
Severance, 218.
Side Lines —
Departure of Vein from, 146, 161, 162.
Relation of Apex to, 161.
Side Veins, 144, 145.
End Lines Control, 166.
Dip Rights of, 173.
INDEX. 527
Slip, 175.
Soldiers' Claims, 15.
South Dakota, Location of Claim in, 65, 201.
Spurs, 175.
Stakes —
Statute Requiring.. 27.
Center and Corner Posts, 27, 49.
On Prior Claim, 47, 77.
Time to Set, 48.
On Cross Cut Discoveries, 45.
Must Cover Apex, 49.
Marks on, 51.
On Precipitous Ground, 55.
Maintaining, 56.
Overlapping, 77.
On Placer, 197.
Removal of, 311.
Size of, 55.
Stamps, 250, 298.
Statutes-
Repealed Acts of Congress, 460.
Text of Acts of Congress, 462.
Timber. Act, 477.
Coal Lands, 475.
Placer Act, 190, 202.
1,500-Foot Act, 20.
Stock — See Corporations.
Paid in Lands, 287.
Certificate of Paid Up, 294.
- Assessment of, 290, 299.
Stockholders, 287.
Stone, Building, 191, 193.
Strikes, 313.
Sunday, 59, 438.
Surface —
Acreage of, 202.
Mining Under Improvements, 218.
Severance, 218.
528 INDEX.
Surface — Continued.
Separate Ownership of, and Minerals, 218.
Right to Tunnel Under, 230.
Survey —
For Patent, 371, 382.
For Adverse, 434.
For Location, 50.
With Inspection, 336.
On Examination of Title, 278.
Land Office Rules for, 369.
Presumed to Cover Vein, 137.
Overlapping, 138.
Apex Leaving, 161, 162.
Irregular, 177.
Surveyor's Lien, 239.
Surveyor General's Circular, As to Fees, 381.
Table of Cases Cited, 479.
Tailings, 208.
Abandonment of, 87.
The Debris Cases, 211.
Taxes, 234.
Tenants in Common, Non- Joinder of, 319.
Collusion With Third Parties, 57.
Relocation by, 115.
Rights of, in Patent, 111.
Lease by, 266.
Tide Lands, 455, 458.
Ties, 52, 53. See Land Office Rules.
To Discovery Shaft, 72.
On Placer, 197.
Timber, 312, 477.
Time —
To Perfect Location, 48.
To Adverse, 437.
To Record, 69.
Essence of Contract, 252.
INDEX. 529
Title-
Abstract of, in Examining Title, 274.
Abstract of, in Land Office, 398, 434.
After Acquired, 277.
Possessory, 10, 12.
Patented, 125.
After Entry, 126.
Color of, 148.
In Third Party, 318.
In Neither Party, 449.
Title Bond, 251.
Town Sites, 222.
Trails, 186.
Tramways, 187.
Trespass, 320.
Rights Initiated by, 83, 197.
Relocator, no Trespasser, 101, 113.
By Surface Owner, 218.
Not Larceny, 311.
Measure of Damages, 320.
Tunnel Sites, 225.
Diverse Ownership in, 95.
Discovery in Tunnel, 28, 44.
Record of, 226.
Location Certificate, 227.
Location Notice, 229.
Abandonment of, 232.
Companies, 287.
Annual Labor in, 233.
Land Office Rules, 347.
Utah, Location of Claim in, 66, 201.
Variations, 176.
Vein — See Lode.
Irregularity of, 137.
Ventilation, 313.
Verdict, in Adverse Suit, 447, 449.
Verification, of Location Certificate, 77.
530 INDEX.
Vertical Planes —
Right to Vein Within, 167.
Walls, 174.
In Discovery, 43.
Warranty Deed, 241.
Conveys After Acquired Title, 277.
Washington, Location of Claim in, 66, 200.
Water. See Ditches, Appropriation, Drainage.
Weights and Measures, 310.
Width of Lode Claims, 21, 22.
Witnesses, to Deeds, 248.
Working Contracts, 273.
Wyoming —
Location of Claim in, 67, 201.
Position of Discovery Shaft, 24.
Zone, Mineral Bearing, 154.
We desire to express obligations for courteous
suggestions and information as to the local law and
custom in their respective States, to the following
attorneys: D. D. Williams, Boise, Idaho; Cullen,
Day & Cullen, Helena, Montana; Corlett Downey,
Laramie, Wyoming; Willis B. Herr, Seattle, Wash-
ington; C. C. Dey, Salt Lake City, Utah; A. Burrows,
Grass Valley, California, and to Horace F. Clark, of
Washington, D. C., for points in Land Office prac
tice. M. & DE S.
Denver, April 6, 1903.
24
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